SEVENTY-EIGHTH LEGISLATURE — REGULAR SESSION
AUSTIN, TEXAS
PROCEEDINGS
EIGHTY-SECOND DAY
(Friday, May 30, 2003)
The Senate met at 8:30 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.
Gregg Matte, Breakaway Ministries, College Station, offered the invocation as follows:
Lord, we come to open this session in prayer. Let this be more than a spiritual token but a starting focus today. May Your will be done in the affairs of the State of Texas. Thank You for the men and women of this government and their commitment and sacrifice. I pray they would trust in the fact that there is no authority except that which God has established and they are God's servant to do the people good. So that their love may abound more and more in knowledge and depth of insight, in order that they may be able to discern what is best, grant them great wisdom and faith, draw their hearts to You. In Your precious and holy name. 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.
MOTION TO RECESS
On motion of Senator Whitmire, the Senate at 8:54 a.m. agreed to recess, upon conclusion of today's Joint Session, until 11:00 a.m. today.
JOINT SESSION
(Memorial Day tribute to fallen Texas soldiers of Operation Iraqi Freedom)
The President announced the time had arrived for the Joint Session as provided by HCR 252.
The President of the Senate and the Senators present, escorted by the Sergeant-at-Arms, proceeded to the Hall of the House of Representatives for the Memorial Day tribute to fallen Texas soldiers of Operation Iraqi Freedom.
The President was announced and, on invitation of the Speaker, occupied a seat at the Speaker's Rostrum.
The Senators were announced and were admitted and escorted to seats prepared for them along the aisle.
Lieutenant Governor David Dewhurst called the Senate to order and announced a quorum present.
Speaker Craddick called the House to order and announced a quorum present.
The Honorable Rick Perry was announced and was escorted to the Speaker's Rostrum by Senator Leticia VanideiPutte and Representative Frank Corte.
Speaker Craddick stated the purpose for which the House and the Senate were in Joint Session.
The colors were posted and the Lone Star Girl Scout Council and Billy Russell, Eagle Scout, Troop 405, led the pledge of allegiance.
The national anthem was played by the Air Force Band of the West from Lackland Air Force Base.
The invocation was offered by Father Bill Davis, Immaculate Heart of Mary Catholic Church, Houston.
HCRi261 was read by the House Reading Clerk.
Speaker Craddick introduced Lieutenant Governor Dewhurst, who addressed the Joint Session briefly and introduced Governor Perry.
Governor Perry addressed the Joint Session.
Senator VanideiPutte and Representative Corte read the names of the fallen Texas soldiers.
A 21-gun salute was conducted by the Texas Army National Guard Salute Battery.
Taps was played by the Air Force Band of the West.
Lieutenant Governor Dewhurst introduced Gregg Matte, Breakaway Ministries, College Station, who offered the benediction.
The Lieutenant Governor at 9:47ia.m. announced that the purpose for which the Joint Session had been called had been completed and, pursuant to a previously adopted motion, the Senate would stand recessed until 11:00 a.m. today.
The Speaker announced that the House would stand At Ease pending the departure of its guests.
AFTER RECESS
The Senate met at 11:00 a.m. and was called to order by Senator Lucio.
3468 78th Legislature — Regular Session 82nd Day
MESSAGES FROM THE HOUSE
HOUSE CHAMBER
Austin, Texas
May 30, 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 245, Addressing issues relative to small community water systems that face exceptional physical or financial circumstances in attempting to comply with federal Safe Drinking Water Act requirements relating to naturally occurring materials.
THE HOUSE HAS CONCURRED IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES:
HB 1131 (non-record vote)
HB 1839 (non-record vote)
HB 2425 (House concurs by a vote of 132 yeas, 0 nays, 4 pnv)
HB 2892 (non-record vote)
HB 3306 (House concurs by a vote of 142 yeas, 0 nays, 2 pnv)
HB 3554 (House concurs by a vote of 143 yeas, 0 nays, 2 pnv)
THE HOUSE HAS REFUSED TO CONCUR IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:
HB 7
House Conferees: Heflin - Chair/Keffer, Jim/Luna/Turner/Wohlgemuth/
HB 471
House Conferees: Pickett - Chair/Gutierrez/Hamric/Jones, Elizabeth/Krusee/
HB 1119
House Conferees: Goodman - Chair/Branch/Hughes/Merritt/Wolens/
HB 1129
House Conferees: Farrar - Chair/Bohac/Callegari/Nixon/Thompson/
HB 1163
House Conferees: Thompson - Chair/Davis, Yvonne/Ellis/Laubenberg/Taylor/
HB 1278
House Conferees: Zedler - Chair/Crabb/Grusendorf/Hill/Mowery/
HB 1493
House Conferees: Solomons - Chair/Elkins/Giddings/Hughes/Marchant/
Friday, May 30, 2003 SENATE JOURNAL 3469
HB 1541
House Conferees: Callegari - Chair/Escobar/Hardcastle/King/Puente/
HB 1566
House Conferees: Telford - Chair/Brown, Fred/Goolsby/Homer/Morrison/
HB 1576
House Conferees: Gallego - Chair/Castro/Marchant/McCall/Villarreal/
HB 1695
House Conferees: Denny - Chair/Bohac/Harper-Brown/Howard/Uresti/
HB 1817
House Conferees: Ritter - Chair/Cook, Robby/Deshotel/Kolkhorst/Morrison/
HB 1865
House Conferees: Bonnen - Chair/Keffer, Bill/Seaman/Thompson/Wilson/
HB 2020
House Conferees: Farabee - Chair/Canales/Keffer, Bill/Keffer, Jim/West, George "Buddy"/
HB 2075
House Conferees: Hilderbran - Chair/Hupp/McClendon/Taylor/Zedler/
HB 2359
House Conferees: Ritter - Chair/Delisi/Grusendorf/Hill/King/
HB 2588
House Conferees: Goodman - Chair/Baxter/Dutton/Morrison/Reyna/
HB 2593
House Conferees: Homer - Chair/Cook, Robby/Phillips/Swinford/Truitt/
HB 3015
House Conferees: Morrison - Chair/Brown, Fred/Heflin/Menendez/Pitts/
HB 3420
House Conferees: Garza - Chair/Chavez/Escobar/Griggs/Guillen/
HB 3459
House Conferees: Pitts - Chair/Grusendorf/Gutierrez/Heflin/McCall/
HB 3546
House Conferees: Hamric - Chair/Davis, Yvonne/Luna/Mowery/Talton/
HB 3622
House Conferees: Brown, Betty - Chair/Callegari/Geren/Hardcastle/Homer/
HJR 28
House Conferees: Pickett - Chair/Gutierrez/Hamric/Jones, Elizabeth/Krusee/
THE HOUSE HAS PASSED THE FOLLOWING MEASURES:
HCR 246, Memorializing the U.S. congress to provide funding or statutory relief relating to naturally occurring materials and associated regulatory effects on small community water systems.
3470 78th Legislature — Regular Session 82nd Day
HCR 247, Memorializing the congress of the United States to modify the Federal Internal Revenue Code to allow retirees to pay for health care costs on a pre-tax basis.
SB 4, Relating to the establishment and operation of the Texas B-On-time student loan program; authorizing the issuance of bonds.
(Amended)
SB 76, Relating to the provision of subsidized child-care services.
(Committee Substitute/Amended)
SB 270, Relating to the continuation and functions of the Texas Lottery Commission.
(Committee Substitute/Amended)
SB 319, Relating to the death of or injury to an unborn child; providing penalties.
(Amended)
SB 600, Relating to the reimbursement of compensation and expenses of certain appointed counsel filing an application for a writ of habeas corpus in a capital case.
(Amended)
SB 618, Relating to the consequences of a public school's being considered low-performing.
(Committee Substitute/Amended)
SB 671, Relating to the determination of school district property values and the accountability of appraisal district operations.
(Amended)
SB 734, Relating to the power of appointment in certain municipalities having city managers.
(Amended)
SB 782, Relating to the authority of a county or municipality to contract for collection services in criminal cases and certain cases involving the parking or stopping of motor vehicles.
(Amended)
SB 800, Relating to the establishment of Texas A&M University–San Antonio and Texas A&M University–Central Texas.
(Amended)
SB 820, Relating to the certification of maximum medical improvement and assignment of an impairment rating for an employee receiving workers' compensation benefits.
(Committee Substitute/Amended)
SB 929, Relating to regional education service centers.
(Committee Substitute/Amended)
SB 1054, Relating to presentence investigation and postsentence treatment and supervision of certain sex offenders.
(Amended)
SB 1108, Relating to academic achievement in public schools.
(Committee Substitute/Amended)
Friday, May 30, 2003 SENATE JOURNAL 3471
SB 1131, Relating to funding of certain emergency medical services, trauma facilities, and trauma care systems.
(Amended)
SB 1152, Relating to the use of TexasOnline.
(Amended)
SB 1173, Relating to prescription drug benefits under the group health benefit programs for certain governmental employees and retired employees.
(Amended)
SB 1184, Relating to the enforcement of commercial motor vehicle safety standards.
(Amended)
SB 1303, Relating to certain employment matters affecting a county auditor, assistant auditor, or court reporter.
(Amended)
SB 1336, Relating to the liability of a criminal defendant and the defendant's sureties on a personal bond or bail bond and to certain procedures in connection with bond forfeiture.
(Amended)
SB 1369, Relating to certain group benefits for retired school employees.
(Committee Substitute/Amended)
SB 1477, Relating to restrictions on the disclosure of certain criminal records and to the duty of law enforcement agencies regarding records associated with certain defendants receiving deferred adjudication; providing a civil penalty.
(Amended)
SB 1664, Relating to private activity bonds.
(Committee Substitute/Amended)
SB 1678, Relating to the organization and duties of the Board of Pardons and Paroles.
(Committee Substitute/Amended)
SB 1696, Relating to the issuance of obligations by certain municipalities to pay unfunded liabilities to public pension funds.
(Amended)
SB 1701, Relating to the Department of Information Resources' management of certain electronic and telecommunications projects.
(Amended)
SB 1835, Relating to testing for communicable diseases certain people who are arrested.
(Amended)
SCR 1, Memorializing Congress to restore the federal income tax deductibility of state and local sales taxes.
SCR 48, Directing the Texas Workers' Compensation Commission to complete a study of prescription drug costs provided under the system, promulgate regulations defining payment methodology, and streamline procedures for claims.
3472 78th Legislature — Regular Session 82nd Day
SCR 55, Designating the Mexic-Arte Museum in Austin as the Official Mexican and Mexican American Art Museum of Texas.
(Amended)
HCR 277, Instructing the enrolling clerk of the senate to make technical corrections to Senate Joint Resolution No. 42.
THE HOUSE HAS REFUSED TO CONCUR IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:
HB 2292
House Conferees: Wohlgemuth - Chair/Davis, John/Ellis/Gutierrez/Truitt/
Respectfully,
/s/Robert Haney, Chief Clerk
House of Representatives
GUESTS PRESENTED
Senator Brimer was recognized and introduced to the Senate Michael Young, assistant basketball coach at the University of Houston, accompanied by his wife, Tina.
The Senate welcomed its guests.
SENATE BILL 1923 WITH HOUSE AMENDMENT
Senator Ogden called SBi1923 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.
Floor Amendment No. 1
Amend SB 1923 as follows:
(1) On page 1, line 12, insert "42nd," between "38th," and "43rd".
The amendment was read.
Senator Ogden moved to concur in the House amendment to SBi1923.
The motion prevailed by a viva voce vote.
PHYSICIAN OF THE DAY
Senator Carona was recognized and presented Dr. T. Dale Ragle of Dallas as the Physician of the Day.
The Senate welcomed Dr. Ragle and thanked him for his participation in the Physician of the Day program sponsored by the Texas Academy of Family Physicians.
Friday, May 30, 2003 SENATE JOURNAL 3473
SENATE RESOLUTION 983
Senator West offered the following resolution:
WHEREAS, The Senate of the State of Texas is pleased to recognize Dr.iLaurence Craig Thomas, who is being honored as Optometrist of the Day on Mayi30, 2003; and
WHEREAS, A native of Houston, Dr. Thomas received his doctor of optometry degree from the University of Houston in 1983 and opened practice in Dallas that same year; and
WHEREAS, For many years, Dr. Thomas has been a regular guest on KHVN 97 AM radio; appearing on a popular program, he has offered listeners his expertise on a wide range of health issues; and
WHEREAS, A well-known lecturer, Dr. Thomas has spoken on many different topics to students at Dallas County public schools, including Madison and South Oak Cliff high schools, John B. Hood Middle School, and Merrifield Elementary School; and
WHEREAS, An exemplary citizen, Dr. Thomas has served on the board of directors of an interfaith group housed at the Jubilee United Methodist Church; the group has reached out to the community by offering lectures on teen pregnancies, dating, marriage, and divorce; and
WHEREAS, Dr. Thomas received the 2001 Optometrist of the Year Award from the Texas Optometric Association; he was also recognized with the 1991 Outstanding Texan Award from the Texas Legislative Black Caucus and with the 1992 Top Cat Award from the Dallas Independent School District; and
WHEREAS, A highly respected gentleman, Dr. Thomas has distinguished himself in his profession and as a leader in the Dallas community, and he deserves recognition for his hard work and his many accomplishments; now, therefore, be it
RESOLVED, That the Senate of the State of Texas, 78th Legislature, hereby commend Dr. Laurence Craig Thomas for his exceptional achievements and extend to him congratulations on being honored as Optometrist of the Day; 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.
GUEST PRESENTED
Senator West was recognized and introduced to the Senate Dr. Laurence Craig Thomas of Dallas.
The Senate welcomed its guest.
SENATE BILL 315 WITH HOUSE AMENDMENTS
Senator Hinojosa called SBi315 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 No. 1
Amend Section 1 of SB 315 by amending Sec. 130.0661(a) to read as follows:
3474 78th Legislature — Regular Session 82nd Day
(a) This section applies only to a junior college district that:
(1) includes within its territory all or part of a municipality with a population of 250,000 or more that borders the Gulf of Mexico; and
(2) has a service area established by Subchapter J that includes four or more whole counties; or
(3) includes within its territory a school district with an enrollment of 180,000 or more that is within a county that borders a tributary bay to the Gulf of Mexico.
Floor Amendment No. 2
Amend SB 315 as follows:
(1) In subsection (a) of SECTION 1 of the bill on line 14, strike "; or" and insert "." after counties.
(2) In subsection (a) of SECTION 1 of the bill, strike "(3) includes within its territory a school district with an enrollment of 180,000 or more that is within a county that borders a tributary bay to the Gulf of Mexico."
The amendments were read.
Senator Hinojosa moved to concur in the House amendments to SBi315.
The motion prevailed by the following vote:iiYeasi30, Naysi1.
Nays:iiLucio.
SENATE BILL 1272 WITH HOUSE AMENDMENTS
Senator Armbrister called SBi1272 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Floor Amendment No. 1
Amend SBi1272 as follows:
(1)iiIn SECTION 3 of the bill, following proposed Section 382.05198(a)(17), Health and Safety Code (House committee printing page 4, line 19), strike "and".
(2)iiIn SECTION 3 of the bill, in proposed Section 382.05198(a)(18), Health and Safety Code, between "line" and the underlined period (House committee printing page 4, line 23), insert the following:
; and
(19)iithe central baghouse must be located at least 440 yards from any building used as a single or multifamily residence, school, or place of worship at the time the application to use the permit is filed with the commission if the plant is located in:
(A)iian area that is not subject to municipal zoning regulations; and
(B)iia county with a population of at least one million
Floor Amendment No. 2
Amend SBi1272 (House committee printing) by adding the following SECTION, appropriately numbered, and renumbering the subsequent SECTIONS of the bill accordingly:
Friday, May 30, 2003 SENATE JOURNAL 3475
SECTIONi____.ii(a)iiThe siting, location, and operation of a facility, as defined by Section 382.003, Health and Safety Code, for which an application for a permit to construct the facility is pending with the Texas Commission on Environmental Quality on the effective date of this Act are governed by Chapter 382, Health and Safety Code, as that chapter existed on the date the application was filed.
(b)iiThis section prevails over any conflicting Act of the 78th Legislature, Regular Session, 2003, regardless of the relative dates of enactment.
Floor Amendment No. 1 on Third Reading
Amend Floor Amendment No. 1 by Callegari to SBi1272 on third reading as follows:
(1) On page 1, line 13 of the amendment, strike the colon.
(2) On page 1, strike lines 14-17 of the amendment and substitute the following:
"an area that is not subject to municipal zoning regulation"
The amendments were read.
Senator Armbrister moved to concur in the House amendments to SBi1272.
The motion prevailed by a viva voce vote.
SENATE BILL 1273 WITH HOUSE AMENDMENT
Senator Armbrister called SBi1273 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 1273 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to suspension and alternatives to suspension of alcoholic beverage licenses and permits.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 11.61, Alcoholic Beverage Code, is amended by adding Subsections (g) and (h) to read as follows:
(g)iiThe length of a suspension must be appropriate for the nature and seriousness of the violation. In determining the length of a suspension, the commission or administrator shall consider:
(1)iithe type of license or permit held;
(2)iithe type of violation;
(3)iiany aggravating or ameliorating circumstances concerning the violation, including those enumerated in Section 11.64(c); and
(4)iithe permittee's or licensee's previous violations.
(h)iiThe length of a suspension may not be based on:
(1)iithe volume of alcoholic beverages sold;
(2)iithe receipts of the business;
(3)iithe taxes paid; or
(4)iithe financial condition of the permittee or licensee.
3476 78th Legislature — Regular Session 82nd Day
SECTIONi2.iiSection 11.64, Alcoholic Beverage Code, is amended to read as follows:
Sec.i11.64.iiALTERNATIVES TO SUSPENSION, CANCELLATION. (a)
When the commission or administrator is authorized to suspend a permit or license
under this code, the commission or administrator shall give the permittee or licensee
the opportunity to pay a civil penalty rather than have the permit or license suspended,
unless the basis for the suspension is a violation of Section 11.61(b)(14), 22.12, 28.11,
61.71(a)(5), 61.71(a)(6), 61.74(a)(14), 69.13, 71.09, 101.63, 106.03, 106.06, or
106.15 or an offense relating to prostitution or gambling, in which case the
commission or administrator shall determine whether the permittee or licensee may
have the opportunity to pay a civil penalty rather than have the permit or license
suspended. The commission shall adopt rules addressing when suspension may be
imposed pursuant to this section without the opportunity to pay a civil penalty. In
adopting rules under this subsection, the commission shall consider the type of license
or permit held, the type of violation, any aggravating or ameliorating circumstances
concerning the violation, and any past violations of this code by the permittee or
licensee. In cases in which a civil penalty is assessed, the commission or administrator
shall determine the amount of the penalty [and in doing so shall consider the
economic impact a suspension would have on the permittee or licensee]. The amount
of the civil penalty may not be less than $150 or more than $25,000 for each day the
permit or license was to have been suspended. If the licensee or permittee does not
pay the penalty before the sixth day after the commission or administrator notifies him
of the amount, the commission or administrator shall impose the suspension.
(b)iiIn the case of a violation of this code by a permittee or a [retail dealer's
off-premise] licensee, the commission or administrator may relax any provision of the
code relating to the suspension or cancellation of the permit or license and assess a
sanction the commission or administrator finds just under the circumstances, and the
commission or administrator may reinstate the license or permit at any time during the
period of suspension on payment by the permittee or licensee of a fee of not less than
$75 nor more than $500, if the commission or administrator finds that any of the
circumstances described in Subsection (c) [of this section] exists.
(c)iiThe following circumstances justify the application of Subsection (b) [of this
section]:
(1)iithat the violation could not reasonably have been prevented by the permittee or licensee by the exercise of due diligence;
(2)iithat the permittee or licensee was entrapped;
(3)iithat an agent, servant, or employee of the permittee or licensee violated this code without the knowledge of the permittee or licensee;
(4)iithat the permittee or licensee did not knowingly violate this code; [or]
(5)iithat the permittee or licensee has demonstrated good faith, including the taking of actions to rectify the consequences of the violation and to deter future violations; or
(6)iithat the violation was a technical one.
(d)iiFees and civil penalties received by the commission under this section shall
be deposited in the [confiscated liquor fund until the unexpended and unencumbered
balance contained in the confiscated liquor fund on September 1, 1983, and the
Friday, May 30, 2003 SENATE JOURNAL 3477
SECTIONi3.iiSubchapter C, Chapter 11, Alcoholic Beverage Code, is amended by adding Section 11.641 to read as follows:
Sec.i11.641.iiAMOUNT OF CIVIL PENALTY. (a) The amount of the civil penalty under Section 11.64 must be appropriate for the nature and seriousness of the violation. In determining the amount of the civil penalty, the commission or administrator shall consider:
(1)iithe type of license or permit held;
(2)iithe type of violation;
(3)iiany aggravating or ameliorating circumstances concerning the violation, including those enumerated in Section 11.64(c); and
(4)iithe permittee's or licensee's previous violations.
(b)iiThe amount of the civil penalty may not be based on:
(1)iithe volume of alcoholic beverages sold;
(2)iithe receipts of the business;
(3)iithe taxes paid; or
(4)iithe financial condition of the permittee or licensee.
(c)iiA civil penalty may not be imposed on the basis of a criminal prosecution in which the defendant was found not guilty, the criminal charges were dismissed, or there has not been final adjudication.
SECTIONi4.iiSection 61.71, Alcoholic Beverage Code, is amended by adding Subsections (h) and (i) to read as follows:
(h)iiThe length of a suspension must be appropriate for the nature and seriousness of the violation. In determining the length of a suspension, the commission or administrator shall consider:
(1)iithe type of license or permit held;
(2)iithe type of violation;
(3)iiany aggravating or ameliorating circumstances concerning the violation, including those enumerated in Section 11.64(c); and
(4)iithe permittee's or licensee's previous violations.
(i)iiThe length of a suspension may not be based on:
(1)iithe volume of alcoholic beverages sold;
(2)iithe receipts of the business;
(3)iithe taxes paid; or
(4)iithe financial condition of the permittee or licensee.
SECTIONi5.iiThis Act takes effect September 1, 2003.
The amendment was read.
Senator Armbrister moved to concur in the House amendment to SBi1273.
The motion prevailed by a viva voce vote.
3478 78th Legislature — Regular Session 82nd Day
SENATE BILL 1276 WITH HOUSE AMENDMENT
Senator Armbrister called SBi1276 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Committee Amendment No. 1
Amend SBi1276 as follows:
(1)iiIn SECTION 1 of the bill, in amended Section 1(a), Chapter 186, Acts of the 50th Legislature, Regular Session, 1947 (Senate engrossed version, page 2, line 9), strike "development, generation, distribution," and substitute "financing of and aiding in the development of facilities located on lands owned by the District for the generation, transmission,".
(2)iiIn SECTION 2 of the bill, in proposed Section 2(o), Chapter 186, Acts of the 50th Legislature, Regular Session, 1947 (Senate engrossed version, page 7, line 3), between "generation" and the semicolon, insert ", to the extent authorized by Section 1(a) of this Act".
(3)iiIn SECTION 2 of the bill, in proposed Section 2(p), Chapter 186, Acts of the 50th Legislature, Regular Session, 1947 (Senate engrossed version, page 7, line 21), between "facility" and the semicolon, insert "to the extent authorized by Section 1(a) of this Act".
The amendment was read.
Senator Armbrister moved to concur in the House amendment to SBi1276.
The motion prevailed by a viva voce vote.
(President in Chair)
SENATE BILL 1570 WITH HOUSE AMENDMENT
Senator Madla called SBi1570 from the President's table for consideration of the House amendment to the bill.
The President laid the bill and the House amendment before the Senate.
Committee Amendment No. 1
Amend SBi1570 by inserting the following:
(f)iiThe district shall not prohibit the sale, purchase, lease, or trade of groundwater by a private well owner under this section.
The amendment was read.
Senator Madla moved to concur in the House amendment to SBi1570.
The motion prevailed by a viva voce vote.
SENATE BILL 1494 WITH HOUSE AMENDMENT
Senator Madla called SBi1494 from the President's table for consideration of the House amendment to the bill.
The President laid the bill and the House amendment before the Senate.
Friday, May 30, 2003 SENATE JOURNAL 3479
Committee Amendment No. 1
Amend SBi1494 (Engrossed Version) by striking lines 1 through 12 on page 8 and substituting the following new SECTION 3:
SECTIONi3.iiChapter 306, Acts of the 49th Legislature, Regular Session, 1945 (Article 8280-126 Vernon's Civil Statutes) is amended by adding SECTION 5A to read as follows:
Sec.i5A(1)iiThe district's boundaries for purposes of the exercise of its powers and duties is defined in Section 5, Chapter 306, Acts of the 49th Legislature, 1945 (Article 8280-126 Vernon's Texas Civil Statutes).
(2)iiIn conformity with the Court's Judgment dated April 22, 1996 in Cause No. SA96CA0335, Rios v. Bexar Metropolitan Water District et al., (U.S. District Court - W.D. Texas), and for the purpose of the exercise of its current retail water utility services, the District's boundaries shall include the territory defined in all or applicable portions of census tracts or property situated within any area certificated by the Texas Commission on Environmental Quality to the District on the date of passage of this Act pursuant to Certificates of Convenience and Necessity Nos. 10675, 12759, and 12760.
The amendment was read.
Senator Madla moved to concur in the House amendment to SBi1494.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE RESOLUTION 883
Senator Whitmire offered the following resolution:
SR 883, In memory of the Honorable Searcy Bracewell of Houston.
The resolution was again read.
Senator Whitmire was recognized and introduced to the Senate family members of the Honorable Searcy Bracewell: his daughter, Betsy Bracewell Machac, and her husband, David Machac; and his grandson, Jacob Machac.
The Senate welcomed its guests and extended its sympathy.
The resolution was previously adopted on Thursday, May 15, 2003.
In honor of the memory of the Honorable Searcy Bracewell of Houston, the text of SR 883 is printed at the end of today's Senate Journal.
(Senator Armbrister in Chair)
SENATE BILL 1522 WITH HOUSE AMENDMENTS
Senator Zaffirini called SBi1522 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.
3480 78th Legislature — Regular Session 82nd Day
Amendment
Amend SB 1522 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the continuous eligibility of certain children for medical assistance benefits.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 10(c), Chapter 584, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
(c)iiThe Health and Human Services Commission or the appropriate state agency
operating part of the medical assistance program under Chapter 32, Human Resources
Code, shall adopt rules required by Section 32.0261, Human Resources Code, as
added by this Act, so that the rules take effect in accordance with that section not
earlier than September 1, 2002, or later than June 1, 2005 [2003]. The rules must
provide for a 12-month period of continuous eligibility in accordance with that section
for a child whose initial or continued eligibility is determined on or after the effective
date of the rules.
SECTIONi2.iiSection 32.025(e), Human Resources Code, is amended to read as follows:
(e)iiThe department shall permit an application requesting medical assistance for a child under 19 years of age to be conducted by 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 requiring an application for a child described by this subsection to be conducted through a personal interview with a department representative only if the department determines that information needed to verify eligibility cannot be obtained in any other manner.
SECTIONi3.iiSection 32.026, Human Resources Code, is amended by amending Subsection (e) and adding Subsection (g) to read as follows:
(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.
(g)iiNotwithstanding any other provision of this code, the department may use information obtained from a third party to verify the assets and resources of a person for purposes of determining the person's eligibility and need for medical assistance. Third-party information includes information obtained from:
(1)iia consumer reporting agency, as defined by Section 20.01, Business & Commerce Code;
(2)iian appraisal district; or
Friday, May 30, 2003 SENATE JOURNAL 3481
(3)iithe Texas Department of Transportation's vehicle registration record database.
SECTIONi4.iiIn 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.
SECTIONi5.iiIf before implementing any provision of this Act a state agency determines that a waiver or authorization from a federal agency is necessary for implementation of that provision, the agency affected by the provision shall request the waiver or authorization and may delay implementing that provision until the waiver or authorization is granted.
SECTIONi6.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.
Floor Amendment No. 1
Amend CSSB 1522, in SECTION 1 of the bill, in amended Section 10(c),
Chapter 584, Acts of the 77th Legislature, Regular Session, 2001 (House committee
printing, page 1, lines 12-13), by striking "June 1, 2005 [2003]" and substituting
"September 1, 2005 [June 1, 2003]".
The amendments were read.
Senator Zaffirini moved to concur in the House amendments to SBi1522.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
GUESTS PRESENTED
Senator Zaffirini was recognized and introduced to the Senate her godson, Weston Huff, serving today as an Honorary Senate Page, accompanied by his parents, Live Oak County Judge Jim Huff and Derri Lyn Huff from George West.
The Senate welcomed its guests.
SENATE BILL 1765 WITH HOUSE AMENDMENT
Senator Deuell called SBi1765 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 1765 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the zoning authority of a county in areas surrounding Lake Ralph Hall.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiThe heading to Subchapter G, Chapter 231, Local Government Code, is amended to read as follows:
3482 78th Legislature — Regular Session 82nd Day
SUBCHAPTER G. ZONING AROUND LAKE ALAN HENRY,
LAKE COOPER, LAKE RALPH HALL, AND POST LAKE
SECTIONi2.iiSection 231.131(a), Local Government Code, is amended to read as follows:
(a)iiThe legislature finds that:
(1)iithe areas that surround Lake Alan Henry, Lake Cooper, Lake Ralph Hall, and Post Lake are or will be frequented for recreational purposes by residents from every part of the state;
(2)iiorderly development and use of the area is of concern to the entire state; and
(3)iibuildings in the area that will be frequented for resort or recreational purposes will tend to become congested and to be used in ways that interfere with the proper use of the area as a place of recreation to the detriment of the public health, safety, morals, and general welfare.
SECTIONi3.iiSection 231.132, Local Government Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:
(a)iiThis subchapter applies to:
(1)iithose parts of Garza County located within one mile of the high water marks established for Lake Alan Henry and Post Lake except land located in Garza County and owned by the White River Municipal Water District;
(2)iithose parts of Kent County located within one mile of the high water
marks established for Lake Alan Henry; [and]
(3)iithe area within 10,000 feet of where the shoreline of Lake Cooper would be if the lake were filled to its storage capacity; and
(4)iithe area within 5,000 feet of where the shoreline of Lake Ralph Hall would be if the lake were filled to its storage capacity.
(c)iiThe application of this subchapter to the area described by Subsection (a)(4) expires on September 1, 2013, unless the permit necessary for the construction of Lake Ralph Hall is issued before that date. This subsection prevails over Subsection (b) to the extent of any conflict.
SECTIONi4.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 Deuell moved to concur in the House amendment to SBi1765.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 1460 WITH HOUSE AMENDMENT
Senator Lindsay called SBi1460 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.
Friday, May 30, 2003 SENATE JOURNAL 3483
Amendment
Amend SB 1460 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to county fire marshals and county fire protection; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSections 352.013, 352.014, and 352.016, Local Government Code, are amended to read as follows:
Sec.i352.013.iiINVESTIGATION OF FIRES. (a) The county fire marshal shall:
(1)iiinvestigate the cause, origin, and circumstances of fires [each fire] that
occur [occurs] within the county but outside the municipalities in the county and that
destroy [destroys] or damage [damages] property or cause injury; and
(2)iidetermine whether a [the] fire was the result of negligent or intentional
conduct.
(b)iiThe commissioners court of a county, with the advice of the county fire
marshal, shall adopt rules and procedures for determining which fires warrant
investigation by the county fire marshal. The county fire marshal shall begin an [this]
investigation within 24 hours after the receipt of information regarding a fire that
warrants investigation under commissioners court rules and procedures. The 24-hour
period does not include a Sunday.
(c)iiIn the performance of official duties, the county fire marshal, at any time of
day, may enter and examine a structure where a fire has occurred and may examine
adjacent premises. [The marshal shall conduct this examination in a manner designed
to impose the least inconvenience to any persons living in the building.]
Sec.i352.014.iiRECORD OF INVESTIGATION. The county fire marshal shall keep a record of each fire that the marshal is required to investigate. The record must include the facts, statistics, and circumstances determined by the investigation, including the origin of the fire and the estimated amount of the loss. Each fire department and state or local agency that provides emergency medical services must submit reports requested by the county fire marshal in a timely manner.
Sec.i352.016.iiINSPECTION OR REVIEW OF PLAN FOR FIRE OR LIFE
SAFETY HAZARDS. (a) In this section, "fire or life safety hazard" means any
condition [of the following conditions] that endangers [endanger] the safety of a
structure or its occupants and promotes [promote] or causes [cause] fire or
combustion, including:
(1)iithe presence of a flammable substance;
(2)iia dangerous or dilapidated wall, ceiling, or other structural element;
(3)iiimproper electrical components [lighting], heating, or other building
services or facilities;
(4)iithe presence of a dangerous chimney, flue, pipe, main, or stove, or of
dangerous wiring; [or]
(5)iidangerous storage, including storage or use of hazardous substances; or
(6)iiinappropriate means of egress, fire protection, or other fire-related safeguard.
3484 78th Legislature — Regular Session 82nd Day
(b)iiIn the interest of safety and fire prevention, the county fire marshal may
inspect for fire or life safety hazards any structure, appurtenance, fixture, or real
property located within 500 [200] feet of a structure, appurtenance, or fixture. The
marshal shall inspect a structure for fire or life safety hazards if called on to do so. In
the absence of a county fire code, the county fire marshal may conduct an inspection
using any nationally recognized code or standard adopted by the state. If the marshal
determines the presence of a fire or life safety hazard, the marshal may order the
owner or occupant of the premises to correct the hazardous situation. If ordered to do
so, an owner or occupant shall correct the hazardous situation in accordance with the
order.
(b-1)iiIn the interest of safety and fire prevention, the county fire marshal shall, if required, and may, if requested, review the plans of a business, single-family residence, multi-family dwelling, or commercial property for fire or life safety hazards.
(c)iiThe commissioners court by order may authorize the county fire marshal to
charge a fee to the owner of a business, a multi-family dwelling, or commercial
property for a plan review or [fire] inspection conducted under this section in a
reasonable amount determined by the commissioners court to cover the cost of the
plan review or inspection.
(d)iiThe commissioners court by order may authorize the county fire marshal to
charge a fee to the owner of a single-family residence for a plan review or [fire]
inspection conducted under this section in a reasonable amount determined by the
commissioners court to cover the cost of the plan review or inspection, if the plan
review or inspection is requested by the owner of the property.
SECTIONi2.iiSubsection (b), Section 352.017, Local Government Code, is amended to read as follows:
(b)iiService of process required by this subchapter shall be made by a peace
officer [constable or sheriff] and shall be signed by the county fire marshal or the fire
marshal's deputy.
SECTIONi3.iiSection 352.019, Local Government Code, is amended by amending Subsections (b) and (c) and adding Subsections (b-1), (e), (f), and (g) to read as follows:
(b)iiThe county fire marshal shall coordinate the work of the various fire-fighting and fire prevention units in the county. On request, the county fire marshal may assist a rural fire prevention district or emergency services district located wholly or partially in the county to accomplish its powers and duties.
(b-1)iiIf the commissioners court establishes procedures for firefighter certification under Subsection (b), the commissioners court must ensure that the procedures are at least as stringent as the minimum qualifications set by the Texas Commission on Fire Protection under Section 419.032, Government Code. This subsection does not apply to a volunteer firefighter as defined by Section 419.001, Government Code.
(c)iiThe county fire marshal or the county fire marshal's designee may perform as the incident commander in a major event if the incident commander of the responsible fire department consents. The county fire marshal may not enforce orders
Friday, May 30, 2003 SENATE JOURNAL 3485
(e)iiA county commissioners court may authorize the fire marshal to provide training programs and operate a training facility for the various fire-fighting and fire prevention units in the county. The county may establish and collect a reasonable fee for the training programs, use of the facility, and services provided by the facility.
(f)iiThe commissioners court and county fire marshal may jointly adopt voluntary guidelines, including voluntary funding guidelines, for fire departments located in unincorporated areas of the county, including fire departments located within rural fire prevention districts or emergency services districts, regarding participation in the Texas Fire Incident Reporting System (TXFIRS) or the National Fire Incident Reporting System (NFIRS), or both. The commissioners court may establish model procedures for voluntary use by the various fire departments in the county with respect to:
(1)iiemergency incident management;
(2)iifirefighter certification; and
(3)iiautomatic mutual aid.
(g)iiIf a commissioners court authorizes a fire marshal to provide training programs and operate a training facility under Subsection (e), the fire marshal must ensure that the training programs and operation of the training facility are at least as stringent as the minimum qualifications set by the Texas Commission on Fire Protection under Section 419.032, Government Code. This subsection does not apply to a volunteer firefighter as defined by Section 419.001, Government Code.
SECTIONi4.iiSubsection (b), Section 352.021, Local Government Code, is amended to read as follows:
(b)iiAn offense under this section is a misdemeanor punishable by a fine of not
more than $2,000 [$25].
SECTIONi5.iiSection 352.022, Local Government Code, is amended to read as follows:
Sec.i352.022.iiPENALTY FOR FAILURE TO COMPLY WITH ORDER. An
owner or occupant who is subject to an order issued under Section 352.016 commits
an offense if that person [he] fails to comply with the order. Each refusal to comply is
a separate offense. The offense is a Class B misdemeanor unless it is shown on the
trial of the offense that the defendant has been previously convicted two or more times
under this section, in which event the offense is a state jail felony. [Each refusal to
comply is a separate offense.]
SECTIONi6.iiArticle 12.01, Code of Criminal Procedure, as amended by Chapters 12, 1479, and 1482, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:
Art.i12.01.iiFELONIES. Except as provided in Article 12.03, felony indictments may be presented within these limits, and not afterward:
(1)iino limitation:
(A)iimurder and manslaughter; [or]
3486 78th Legislature — Regular Session 82nd Day
(B)iisexual assault, if during the investigation of the offense biological matter is collected and subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained; or
(C)ii[, and] an offense involving leaving the scene of an accident under
Section 550.021, Transportation Code, if the accident resulted in the death of a
person;
(2)iiten years from the date of the commission of the offense:
(A)iitheft of any estate, real, personal or mixed, by an executor, administrator, guardian or trustee, with intent to defraud any creditor, heir, legatee, ward, distributee, beneficiary or settlor of a trust interested in such estate;
(B)iitheft by a public servant of government property over which he exercises control in his official capacity;
(C)iiforgery or the uttering, using or passing of forged instruments;
(D)iiinjury to a child, elderly individual, or disabled individual
punishable as a felony of the first degree under Section 22.04, Penal Code; [or]
(E)iisexual assault, except as provided by Subdivision (1) or (5); or
(F)iiarson;
(3)iiseven years from the date of the commission of the offense:
(A)iimisapplication of fiduciary property or property of a financial institution;
(B)iisecuring execution of document by deception; or
(C)iia violation under Sections 153.403(22)-(39), Tax Code;
(4)iifive years from the date of the commission of the offense:
(A)iitheft, burglary, robbery; [or]
(B)ii[arson;]
[(C)]iikidnapping;
(C)i[(D)]iiinjury to a child, elderly individual, or disabled individual that
is not punishable as a felony of the first degree under Section 22.04, Penal Code; or
(D)i[(E)]iiabandoning or endangering a child;
(5)iiten years from the 18th birthday of the victim of the offense:
(A)iiindecency with a child under Section 21.11(a)(1) or (2), Penal Code; or
(B)iiexcept as provided by Subdivision (1), sexual assault under Section 22.011(a)(2), Penal Code, or aggravated sexual assault under Section 22.021(a)(1)(B), Penal Code; or
(6)iithree years from the date of the commission of the offense: all other felonies.
SECTIONi7.ii(a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before that date.
(b)iiAn 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.
Friday, May 30, 2003 SENATE JOURNAL 3487
(c)iiThe change in law made by this Act to Article 12.01, Code of Criminal Procedure, does not apply to an offense if the prosecution of that offense became barred by limitation before the effective date of this Act. The prosecution of that offense remains barred as if this Act had not taken effect.
SECTIONi8.iiThis Act takes effect September 1, 2003.
The amendment was read.
Senator Lindsay moved to concur in the House amendment to SBi1460.
The motion prevailed by a viva voce vote.
SENATE BILL 1465 WITH HOUSE AMENDMENT
Senator Lindsay called SBi1465 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 1465 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the establishment of criminal law magistrates in Harris County.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiChapter 54, Government Code, is amended by adding Subchapter X to read as follows:
SUBCHAPTER X. CRIMINAL LAW MAGISTRATES IN
HARRIS COUNTY
Sec.i54.1201.iiDEFINITIONS. In this chapter, "drug court" has the meaning assigned by Section 469.001, Health and Safety Code.
Sec.i54.1202.iiAPPOINTMENT. (a) The judges of the district courts of Harris County that give preference to criminal cases, with the consent and approval of the Commissioners Court of Harris County, may appoint the number of magistrates set by the commissioners court to perform the duties associated with the administration of drug courts and acceptance and sentencing on agreed plea bargains as authorized by this subchapter.
(b)iiEach magistrate's appointment must be made with the approval of the majority of the judges described in Subsection (a).
(c)iiIf the number of magistrates is less than the number of the appointing judges, each magistrate shall serve equally in the courts of those judges.
Sec.i54.1203.iiQUALIFICATIONS. A magistrate must:
(1)iibe a resident of this state and of Harris County; and
(2)iihave been licensed to practice law in this state for at least four years.
Sec.i54.1204.iiCOMPENSATION. A magistrate is entitled to the salary determined by the Commissioners Court of Harris County.
Sec.i54.1205.iiJUDICIAL IMMUNITY. A magistrate has the same judicial immunity as a district judge.
3488 78th Legislature — Regular Session 82nd Day
Sec.i54.1206.iiTERMINATION OF SERVICES. The services of a magistrate may be terminated by a majority vote of the appointing judges of the district courts of Harris County that give preference to criminal cases.
Sec.i54.1207.iiPROCEEDINGS THAT MAY BE REFERRED. (a) A judge may refer to a magistrate:
(1)iia criminal case for drug court proceedings; and
(2)iia criminal case involving an agreed plea bargain recommendation as to punishment or an agreed recommendation for a presentence investigation report in which the plea will be accepted by the magistrate and the sentence determined by the judge.
(b)iiA magistrate may not preside over a contested trial on the merits, regardless of whether the trial is before a jury.
Sec.i54.1208.iiORDER OF REFERRAL. (a) To refer one or more cases to a drug court magistrate or a magistrate accepting an agreed plea bargain recommendation, a judge or board of judges trying criminal cases must issue an order of referral specifying the magistrate's duties.
(b)iiAn order of referral may:
(1)iilimit the powers of the magistrate and direct the magistrate to report on specific issues and perform particular acts;
(2)iiset the time and place for the hearing;
(3)iiprovide a date for filing the magistrate's findings;
(4)iidesignate proceedings for more than one case over which the magistrate shall preside;
(5)iidirect the magistrate to call the court's docket; and
(6)iiset forth general powers and limitations of authority of the magistrate applicable to any case referred.
Sec.i54.1209.iiPOWERS. (a) Except as limited by an order of referral, a magistrate to whom a drug court case is referred may:
(1)iiconduct hearings;
(2)iihear evidence;
(3)iicompel production of relevant evidence;
(4)iirule on admissibility of evidence;
(5)iiissue summons for the appearance of witnesses;
(6)iiexamine witnesses;
(7)iiswear witnesses for hearings;
(8)iimake findings of fact on evidence;
(9)iiformulate conclusions of law;
(10)iirule on preliminary motions;
(11)iirecommend the rulings, orders, or judgment to be made in a case;
(12)iiregulate proceedings in a hearing;
(13)iiin a case referred under Section 54.1207(a)(1):
(A)iiaccept an agreed plea of guilty or an agreed plea bargain recommendation;
(B)iienter a finding of guilt and impose or suspend sentence under an agreed plea bargain recommendation; or
Friday, May 30, 2003 SENATE JOURNAL 3489
(C)iidefer adjudication of guilt under an agreed plea bargain recommendation; and
(14)iiperform any act and take any measure necessary and proper for the efficient performance of the drug court or the duties required by the order of referral.
(b)iiExcept as limited by an order of referral, a magistrate to whom an agreed plea bargain recommendation is referred may:
(1)iiin a case referred under Section 54.1207(a)(2):
(A)iiaccept an agreed plea bargain recommendation related to punishment;
(B)iiaccept an agreed recommendation for a presentence investigation report in which the plea will be accepted by the magistrate and the sentence determined by the judge;
(C)iienter a finding of guilt and impose or suspend sentence under an agreed plea bargain recommendation; or
(D)iidefer adjudication of guilt under an agreed plea bargain recommendation; and
(2)iiperform any act and take any measure necessary and proper for the efficient performance of the duties required by the order of referral.
(c)iiA magistrate may not enter a ruling on any issue of law or fact if that ruling could result in dismissal or require dismissal of a pending criminal prosecution, but the magistrate may make findings, conclusions, and recommendations on those issues.
Sec.i54.1210.iiRECORD OF PROCEEDINGS. At the request of a party, the court shall provide that the proceedings before the magistrate be recorded.
Sec.i54.1211.iiWITNESS. (a) A witness who appears before a magistrate and is sworn is subject to the penalties for perjury provided by law.
(b)iiA supervising judge or judges may issue attachment against and may fine or imprison a witness whose failure to appear after being summoned or whose refusal to answer questions has been certified to the court.
Sec.i54.1212.iiPAPERS TRANSMITTED TO THE JUDGE. At the conclusion of the proceedings, a magistrate shall transmit to the referring court any papers relating to the case, including the magistrate's findings, conclusions, orders, recommendations, or other action taken.
Sec.i54.1213.iiJUDICIAL ACTION. (a) The supervising judge or judges of a drug court may modify, correct, reject, reverse, or recommit for further information any action taken by the magistrate.
(b)iiIf the supervising judge or judges do not modify, correct, reject, reverse, or recommit an action of the magistrate, the action becomes the decree of the court.
(c)iiAt the conclusion of each term during which the services of a magistrate are used, the supervising judge or judges shall enter a decree on the minutes of the referring court adopting the actions of the magistrate of which the court approves.
Sec.i54.1214.iiCRIMINAL LAW MAGISTRATES. (a) If a criminal law magistrate appointed under this subchapter is absent or unable to serve, the judge referring the case may appoint another criminal law magistrate to serve for the absent magistrate.
(b)iiA criminal law magistrate serving for another magistrate under this section has the powers and shall perform the duties of the magistrate for whom he is serving.
3490 78th Legislature — Regular Session 82nd Day
SECTIONi2.iiThis Act takes effect September 1, 2003.
The amendment was read.
Senator Lindsay moved to concur in the House amendment to SBi1465.
The motion prevailed by a viva voce vote.
SENATE BILL 1725 WITH HOUSE AMENDMENTS
Senator Lindsay called SBi1725 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Committee Amendment No. 1
Amend SBi1725 by adding the appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS appropriately:
SECTIONi____.iiSection 1.03(d), Chapter 1029, Acts of the 76th Legislature, Regular Session, 1999, is amended to read as follows:
(d)iiOn a municipality's annexation of any of the authority's territory, the
annexed territory is excluded from the authority's territory. The authority shall
continue to provide services to the annexed territory in accordance with contracts in
effect at the time of the annexation unless a written agreement between the board and
the governing body of the municipality provides otherwise Except to the extent the
authority agrees in writing, a municipality's annexation of territory within the
authority has no effect on the authority's ability to assess and collect inside the
territory annexed by the municipality the types of fees, rates, charges, or special
assessments that the authority was assessing and collecting at the time the
municipality initiated the annexation; provided, however, that the authority's ability to
assess and collect such fees, rates, charges, or special assessments shall terminate on
the later to occur of (i) the date of final payment or defeasance of any bonds or other
indebtedness (including any refunding bonds) that are secured by such fees, rates,
charges, or special assessments or (ii) the date that the authority no longer provides
services inside the annexed territory. The authority shall continue to provide services
to the annexed territory in accordance with contracts in effect at the time of the
annexation unless a written agreement between the board and the governing body of
the municipality provides otherwise.
Committee Amendment No. 2
Amend SB 1725 by striking SECTION 1 of the bill (Senate engrossed version, page 1, lines 4-20) and substituting the following:
SECTIONi1.iiSection 2.02(c), Chapter 1029, Acts of the 76th Legislature, Regular Session, 1999, is amended to read as follows:
(c)iiIn the manner described by Section 49.103(d), Water Code, the board shall redraw the single-member voting districts as required by law as soon as practicable after:
(1)iieach federal decennial census; and
(2)iiany change in the boundaries of the authority[.] which increases the total
area of the authority by more than 20 percent.
The amendments were read.
Friday, May 30, 2003 SENATE JOURNAL 3491
Senator Lindsay moved to concur in the House amendments to SBi1725.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
GUESTS PRESENTED
Senator Deuell was recognized and introduced to the Senate Girl Scouts and their leader from Mesquite.
The Senate welcomed its guests.
SENATE BILL 688 WITH HOUSE AMENDMENT
Senator West called SBi688 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.
Committee Amendment No. 1
Amend SBi688 by inserting the following between the word "board" and the period on page 1, at line 23:
"that may be adopted under general law by any other school district"
The amendment was read.
Senator West moved to concur in the House amendment to SBi688.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 1007 WITH HOUSE AMENDMENTS
Senator West called SBi1007 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Committee Amendment No. 1
Amend SBi1007 as follows:
(1)iiIn SECTION 3 of the bill, strike the introductory language (Senate engrossment, page 3, lines 7-9) and substitute "Subsections (f) and (j), Section 56.307, Education Code, are amended to read as follows:".
(2)iiIn SECTION 3 of the bill, immediately after amended Subsection (f), Section 56.307, Education Code (Senate engrossment, page 3, between lines 14 and 15), insert the following:
(j)iiAn institution may use other available sources of financial aid, other than a
loan [or a Pell grant], to cover any difference in the amount of a TEXAS grant and the
actual amount of tuition and required fees at the institution.
Amendment No. 2
Amend SBi1007 (Senate Engrossment) as follows:
(1)iiIn SECTION 3 of the bill, in the introductory language (page 3, line 7), strike "Subsection (f)" and substitute "Subsections (f) and (h)".
(2)iiIn SECTION 3 of the bill, in the introductory language (page 3, line 9), strike "is" and substitute "are".
3492 78th Legislature — Regular Session 82nd Day
(3)iiAt the end of SECTION 3 of the bill (page 3, between lines 14 and 15), insert the following:
(h)iiThe total amount of grants that a student may receive in an academic year
under this subchapter and under Section 61.221 may not exceed the total amount of
tuition and required fees charged to the student for the academic periods for which
one or more of the grants were awarded [maximum amount authorized under Section
61.227].
(4)iiIn SECTION 4 of the bill, immediately after "SECTION 4." (page 3, line 15), insert "(a)".
(5)iiAt the end of SECTION 4 of the bill (page 3, between lines 20 and 21), insert the following:
(b)iiThe change in law made by this Act to Section 56.307, Education Code, applies beginning with the 2003-2004 academic year.
The amendments were read.
Senator West moved to concur in the House amendments to SBi1007.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 1318 WITH HOUSE AMENDMENT
Senator VanideiPutte called SBi1318 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 1318 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to authorization of securities lending for governmental entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubchapter A, Chapter 2256, Government Code, is amended by adding Section 2256.0115 to read as follows:
Sec.i2256.0115.iiAUTHORIZED INVESTMENTS: SECURITIES LENDING PROGRAM. (a) A securities lending program is an authorized investment under this subchapter if it meets the conditions provided by this section.
(b)iiTo qualify as an authorized investment under this subchapter:
(1)iithe value of securities loaned under the program must be not less than 100 percent collateralized, including accrued income;
(2)iia loan made under the program must allow for termination at any time;
(3)iia loan made under the program must be secured by:
(A)iipledged securities described by Section 2256.009;
(B)iipledged irrevocable letters of credit issued by a bank that is:
(i)iiorganized and existing under the laws of the United States or any other state; and
(ii)iicontinuously rated by at least one nationally recognized investment rating firm at not less than A or its equivalent; or
(C)iicash invested in accordance with Section:
Friday, May 30, 2003 SENATE JOURNAL 3493
(i)ii2256.009;
(ii)ii2256.013;
(iii) 2256.014; or
(iv)ii2256.016;
(4)iithe terms of a loan made under the program must require that the securities being held as collateral be:
(A)iipledged to the investing entity;
(B)iiheld in the investing entity's name; and
(C)iideposited at the time the investment is made with the entity or with a third party selected by or approved by the investing entity;
(5)iia loan made under the program must be placed through:
(A)iia primary government securities dealer, as defined by 5 C.F.R. Section 6801.102(f), as that regulation existed on September 1, 2003; or
(B)iia financial institution doing business in this state; and
(6)iian agreement to lend securities that is executed under this section must have a term of one year or less.
SECTIONi2.iiThis Act takes effect September 1, 2003.
The amendment was read.
Senator VanideiPutte moved to concur in the House amendment to SBi1318.
The motion prevailed by a viva voce vote.
SENATE BILL 1820 WITH HOUSE AMENDMENT
Senator VanideiPutte called SBi1820 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Committee Amendment No. 1
Amend SB 1820 as follows:
(1)iiStrike lines 5 and 6 on page 1 and substitute the following:
SECTIONi1.iiSubsections (b) and (c), Section 39.072, Education Code, are amended to read as follows:
(2)iiAdd the following between lines 1 and 2 on page 2:
(c)iiThe agency shall evaluate against state standards and shall report the performance of each campus in a district and each open-enrollment charter school on the basis of the campus's performance on the indicators adopted under Sections 39.051(b)(1) through (7). Consideration of the effectiveness of district programs under subsections (b)(2) or (3) must be based on data collected through the Public Education Information Management System for purposes of accountability under this chapter and include the results of assessments required under Section 39.023.
The amendment was read.
Senator VanideiPutte moved to concur in the House amendment to SBi1820.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
3494 78th Legislature — Regular Session 82nd Day
CONFERENCE COMMITTEE ON HOUSE BILL 111
Senator Zaffirini called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi111 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi111 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Zaffirini, Chair; Carona, Harris, Gallegos, and Shapleigh.
SENATE BILL 103 WITH HOUSE AMENDMENT
Senator VanideiPutte called SBi103 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Floor Amendment No. 1
Amend SBi103 by adding the following section and renumbering subsequent sections accordingly:
SECTIONi___. (a) Section 46.15(b), Penal Code, as amended by Chapters 1221 and 1261, Acts of the 75th Legislature, Regular Session, 1997, is amended to read as follows:
(b)iiIt is an exception to the application of Section 46.02 that the [does not apply
to a] person [who]:
(1)iiis in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;
(2)iiis on the person's own premises or premises under the person's control unless the person is an employee or agent of the owner of the premises and the person's primary responsibility is to act in the capacity of a security guard to protect persons or property, in which event the person must comply with Subdivision (5);
(3)iiis traveling;
(4)iiis engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor's residence, if the weapon is a type commonly used in the activity;
(5)iiholds a security officer commission issued by the Texas Board of Private Investigators and Private Security Agencies, if:
(A)iithe person is engaged in the performance of the person's duties as a security officer or traveling to and from the person's place of assignment;
(B)iithe person is wearing a distinctive uniform; and
(C)iithe weapon is in plain view;
Friday, May 30, 2003 SENATE JOURNAL 3495
(6)iiis carrying a concealed handgun and a valid license issued under
Subchapter H, Chapter 411, Government Code [Article 4413(29ee), Revised Statutes],
to carry a concealed handgun of the same category as the handgun the person is
carrying;
(7)iiholds a security officer commission and a personal protection
authorization issued by the Texas Board of Private Investigators and Private Security
Agencies and who is providing personal protection under Chapter 1702, Occupations
Code [the Private Investigators and Private Security Agencies Act (Article
4413(29bb), Vernon's Texas Civil Statutes)]; or
(8)iiholds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises.
(b)iiThe change in law made by this section in amending Section 46.15(b), Penal Code, 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 subsection, an offense was committed before the effective date of this Act if any element of the offense was committed before that date.
The amendment was read.
Senator VanideiPutte moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 103 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators VanideiPutte, Chair; Whitmire, Ogden, Williams, and Ratliff.
SENATE BILL 970 WITH HOUSE AMENDMENTS
Senator Shapleigh called SBi970 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Floor Amendment No. 2
Amend SB 970 in SECTION 1 of the bill, in added Chapter 122, Agriculture Code (House committee printing, page 1, between lines 18 and 19) by inserting the following:
Sec. 122.0011. APPLICABILITY. This chapter applies only to a county all or part of which is located in the Chihuahua Desert.
3496 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 3
Amend SB 970 as follows:
(1) In SECTION 1 of the bill, strike Section 122.003, Agriculture Code (committee printing, page 1, lines 22-24, and page 2, lines 1-3), and substitute the following:
Sec. 122.003. REQUIREMENTS FOR SALE OR TRANSPORT. Unless a person is registered as provided by Section 122.004, a person may not:
(1) sell the plant;
(2) offer the plant for sale; or
(3) transport the plant out of this state.
(2) In SECTION 1 of the bill, strike Sections 122.005, 122.006, 122.007 and 122.008(a), Agriculture Code (committee printing, page 2, lines 16-27, and page 3, lines 1-9), and substitute the following:
Sec. 122.005. STOP-SALE ORDER. In enforcing this chapter, the department may issue and enforce a written or printed order to stop the sale of a desert plant or a shipment of desert plants sold or transported by a person who is not registered as provided by Section 122.004. If an order is issued, a person may not sell the plant or shipment until the person has been properly registered.
Sec. 122.006. AUTHORITY TO SEIZE PLANTS. In enforcing this chapter, the department with or without process may seize a desert plant or a shipment of desert plants that is intended:
(1) for sale or shipment by a person who is not registered as provided by Section 122.004; and
(2) for transfer out of this state.
Sec. 122.007. PENALTY. (a) A person commits an offense if the person:
(1) advertises, sells, or offers for sale a desert plant or a shipment of desert plants; and
(2) the person is not registered as provided by Section 122.004.
The amendments were read.
Senator Shapleigh moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 970 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Shapleigh, Chair; Duncan, Barrientos, Hinojosa, and Lucio.
SENATE BILL 1952 WITH HOUSE AMENDMENTS
Senator Ellis called SBi1952 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.
Friday, May 30, 2003 SENATE JOURNAL 3497
Amendment
Amend SB 1952 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the reorganization of, efficiency in, and other reform measures applying to state government.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
PART 1. GENERAL MATTERS AFFECTING STATE
AGENCIES, INCLUDING CONSOLIDATION OF
FUNCTIONS AND ENTITIES
ARTICLE 1A. ADJUTANT GENERAL
SECTIONi1A.01.iiSection 431.022(b), Government Code, is amended to read as follows:
(b)iiThe adjutant general is appointed by the governor, with the advice and consent of the senate if in session, to a term expiring February 1 of each odd-numbered year. To be qualified for appointment as adjutant general a person must:
(1)iiwhen appointed be serving as a federally recognized officer of not less than field grade in the Texas National Guard;
(2)iihave previously served on active duty or active duty for training with the
army, [or] air force, or marines; and
(3)iihave completed at least 10 years' service as a federally recognized reserve or active duty commissioned officer with an active unit of the United States armed forces, the National Guard, or the Texas National Guard, including at least five years with the Texas National Guard.
ARTICLE 1B. USE OF HEALTH REIMBURSEMENT
ARRANGEMENTS
SECTIONi1B.01.iiChapter 3, Insurance Code, is amended by adding Subchapter M to read as follows:
SUBCHAPTER M. HEALTH REIMBURSEMENT ARRANGEMENTS
Art.i3.99.iiHEALTH REIMBURSEMENT ARRANGEMENTS. Notwithstanding any other provision of law, any agency of this state that provides a program of health insurance or health benefits shall provide that program in accordance with the revenue ruling of the United States Internal Revenue Service that authorizes health reimbursement arrangements (Rev. Ru. 2002-41) and may adopt appropriate rules to implement the program in accordance with this article.
ARTICLE 1C. PUBLIC INFORMATION
SECTIONi1C.01.iiSubchapter C, Chapter 401, Government Code, is amended by adding Section 401.0446 to read as follows:
Sec.i401.0446.iiBUDGETARY WORKING PAPERS. (a) In this section "budgetary working paper" means information, other than a uniform budget estimate form, that is created, received, considered, or otherwise used by a governmental body in estimating revenues or in considering or preparing a draft or final biennial state fiscal budget, including a draft, a working paper, supporting material, research material, or an internal or external communication relating to that budget.
3498 78th Legislature — Regular Session 82nd Day
(b)iiA budgetary working paper that is collected, assembled, or maintained by the governor, lieutenant governor, comptroller, speaker of the house of representatives, Legislative Budget Board, senate finance committee, senate state affairs committee, house appropriations committee, or house ways and means committee, is excepted from required public disclosure under Chapter 552 or any other law of this state. Section 552.022 does not apply to information excepted from required public disclosure by this section.
ARTICLE 1D. MEMBERS OF TEXAS WORKERS'
COMPENSATION COMMISSION
SECTIONi1D.01.iiSection 402.002(a), Labor Code, is amended to read as follows:
(a)iiMembers of the commission hold office for two-year [staggered six-year]
terms[, with the terms of one member representing employers and one member
representing wage earners] expiring on February 1 of each odd-numbered year.
SECTIONi1D.02.iiThe current terms of the members of the Texas Workers' Compensation Commission expire on February 1, 2005.
ARTICLE 1E. MEMBERS OF BOARD OF PARDONS AND PAROLES
POLICY BOARD
SECTIONi1E.01.iiSections 508.036(a) and (b), Government Code, are amended to read as follows:
(a)iiThe governor shall designate seven [six] members of the board to serve as
the Board of Pardons and Paroles Policy Board. The governor shall designate the
presiding officer of the board as one of the seven [six] members of the policy board,
and the presiding officer of the board shall serve as presiding officer of the policy
board. Service on the policy board is an additional duty of office for members
appointed to the policy board.
(b)iiMembers of the board designated as members of the policy board serve on the policy board for six-year terms that are concurrent with their six-year terms on the board, with the service of two or three members expiring February 1 of each odd-numbered year.
SECTIONi1E.02.iiAs soon as possible on or after September 1, 2003, the governor shall appoint an additional member to the Board of Pardons and Paroles Policy Board under Section 508.036(a), Government Code, as amended by this Act, for a term expiring February 1, 2009.
ARTICLE 1F. MEMBERS OF TEXAS VETERANS COMMISSION
SECTIONi1F.01.iiSection 434.003(c), Government Code, is amended to read as follows:
(c)iiA person having a less than honorable discharge from military service is not
eligible to be a member. No two members may reside in the same senatorial district[,
and not more than one member may be from a senatorial district composed of a single
county].
[ARTICLE 1G. RESERVED]
ARTICLE 1H. EXECUTIVE ORDERS RELATING TO
STATE AGENCIES
SECTIONi1H.01.iiSubchapter F, Chapter 401, Government Code, is amended by adding Section 401.105 to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3499
Sec.i401.105.iiEXECUTIVE ORDERS TO MAKE CERTAIN CHANGES TO STATE AGENCIES FOR EFFICIENT ADMINISTRATION AND OPERATIONS. (a) In this section, "state agency" includes an institution of higher education as defined by Section 61.003, Education Code, other than a public junior college. The term does not include a state agency that is headed by a statewide-elected official.
(b)iiThe governor may issue an executive order to change the organization and operations of a state agency in the executive branch of state government if:
(1)iithe governor considers the change to be necessary for efficient administration; and
(2)iithe change is not inconsistent or incompatible with the Texas Constitution or a state statute.
(c)iiAn executive order issued by the governor under this section has the force and effect of law.
(d)iiThe governor may amend or rescind an executive order issued under this section at any time.
ARTICLE 1I. TEXAS HIGHER EDUCATION
COORDINATING BOARD
SECTIONi1I.01.iiSection 61.022, Education Code, is amended to read as follows:
Sec.i61.022.iiMEMBERS OF BOARD; APPOINTMENT; TERMS OF
OFFICE. The board shall consist of nine [18] members appointed by the governor so
as to provide representation from all areas of the state with the advice and consent of
the senate, and as the constitution provides. Members of the board serve staggered
six-year terms. The terms of one-third of the members expire August 31 of each
odd-numbered year. [Of the initial appointments to the board six shall be for terms
which shall expire August 31, 1967, six for terms which shall expire August 31, 1969,
and six for terms which shall expire on August 31, 1971, or at such time as their
successors are appointed and have qualified. Thereafter, the governor shall appoint
members for terms of six years. Members of the Texas Commission on Higher
Education are eligible for appointment to the board.] No member may be employed
professionally for remuneration in the field of education during his term of office.
SECTIONi1I.02.iiTo achieve an orderly transition from 18 to 9 positions on the Texas Higher Education Coordinating Board, the governor on August 31, 2003, or September 1, 2003, shall appoint only three persons to the coordinating board for terms expiring on August 31, 2009. On, or as soon as possible after, August 31, 2005, the governor shall appoint only four members to the coordinating board for terms expiring on August 31, 2011. On, or as soon as possible after, August 31, 2007, the governor shall appoint only two members to the coordinating board for terms expiring on August 31, 2013. As terms on the coordinating board expire on and after Augusti31, 2009, the governor shall appoint three members to the coordinating board in accordance with Section 61.022, Education Code, as amended by this Act.
ARTICLE 1J. ABOLITION OF CERTAIN AGENCIES AND
TRANSFER OF POWERS AND DUTIES TO
TEXAS DEPARTMENT OF LICENSING AND REGULATION
SECTIONi1J.01.iiSection 51.052(a), Occupations Code, is amended to read as follows:
3500 78th Legislature — Regular Session 82nd Day
(a)iiThe commission consists of seven [six] members appointed by the governor
with the advice and consent of the senate.
SECTIONi1J.02.iiSection 51.055(a), Occupations Code, is amended to read as follows:
(a)iiMembers of the commission serve staggered six-year terms. The terms of two or three members expire on February 1 of each odd-numbered year.
SECTIONi1J.03.iiSection 651.001, Occupations Code, is amended by adding Subdivision (3-a) to read as follows:
(3-a)ii"Department" means the Texas Department of Licensing and Regulation.
SECTIONi1J.04.iiSubchapter A, Chapter 651, Occupations Code, is amended by adding Sections 651.004 and 651.005 to read as follows:
Sec.i651.004.iiTEXAS DEPARTMENT OF LICENSING AND REGULATION. (a) The department shall administer this chapter. If in administering this chapter there is a conflict between a provision of this chapter and a provision of Chapter 51, the provision of Chapter 51 controls.
(b)iiA reference in this chapter or other law to the Texas Funeral Service Commission means the department.
Sec.i651.005.iiADVISORY COMMITTEE. The governor shall appoint an advisory committee of seven persons to advise the department in administering this chapter.
SECTIONi1J.05.iiSection 1071.002, Occupations Code, is amended by adding Subdivision (3-a) to read as follows:
(3-a)ii"Department" means the Texas Department of Licensing and Regulation.
SECTIONi1J.06.iiSubchapter A, Chapter 1071, Occupations Code, is amended by adding Sections 1071.005 and 1071.006 to read as follows:
Sec.i1071.005.iiTEXAS DEPARTMENT OF LICENSING AND REGULATION. (a) The department shall administer this chapter. If in administering this chapter there is a conflict between a provision of this chapter and a provision of Chapter 51, the provision of Chapter 51 controls.
(b)iiA reference in this chapter or other law to the Texas Board of Professional Land Surveying means the department.
Sec.i1071.006.iiADVISORY COMMITTEE. The governor shall appoint an advisory committee of seven persons to advise the department in administering this chapter.
SECTIONi1J.07.iiSection 1201.003(7), Occupations Code, is amended to read as follows:
(7)ii"Department" means the Texas Department of Licensing and Regulation
[Housing and Community Affairs].
SECTIONi1J.08.iiSubchapter A, Chapter 1201, Occupations Code, is amended by adding Section 1201.009 to read as follows:
Sec.i1201.009.iiADVISORY COMMITTEE. The governor shall appoint an advisory committee of seven persons to advise the department in administering this chapter.
Friday, May 30, 2003 SENATE JOURNAL 3501
SECTIONi1J.09.iiSection 1301.002(1), Occupations Code, is amended to read as follows:
(1)ii"Department" ["Board"] means the Texas Department of Licensing and
Regulation [State Board of Plumbing Examiners].
SECTIONi1J.10.iiSubchapter A, Chapter 1301, Occupations Code, is amended by adding Sections 1301.004 and 1301.005 to read as follows:
Sec.i1301.004.iiTEXAS DEPARTMENT OF LICENSING AND REGULATION. (a) The department shall administer this chapter. If in administering this chapter there is a conflict between a provision of this chapter and a provision of Chapter 51, the provision of Chapter 51 controls.
(b)iiA reference in this chapter to the board or a reference in other law to the Texas State Board of Plumbing Examiners means the department.
Sec.i1301.005.iiADVISORY COMMITTEE. The governor shall appoint an advisory committee of seven persons to advise the department in administering this chapter.
SECTIONi1J.11.iiSection 1601.001, Occupations Code, is amended by adding Subdivision (4-a) to read as follows:
(4-a)ii"Department" means the Texas Department of Licensing and Regulation.
SECTIONi1J.12.iiSubchapter A, Chapter 1601, Occupations Code, is amended by adding Sections 1601.005 and 1601.006 to read as follows:
Sec.i1601.005.iiTEXAS DEPARTMENT OF LICENSING AND REGULATION. (a) The department shall administer this chapter. If in administering this chapter there is a conflict between a provision of this chapter and a provision of Chapter 51, the provision of Chapter 51 controls.
(b)iiA reference in this chapter to the board or a reference in other law to the State Board of Barber Examiners means the department.
Sec.i1601.006.iiADVISORY COMMITTEE. The governor shall appoint an advisory committee of seven persons to advise the department in administering this chapter.
SECTIONi1J.13.iiSection 1602.001, Occupations Code, is amended by adding Subdivision (1-a) to read as follows:
(1-a)ii"Department" means the Texas Department of Licensing and Regulation.
SECTIONi1J.14.iiSubchapter A, Chapter 1602, Occupations Code, is amended by adding Sections 1602.005 and 1602.006 to read as follows:
Sec.i1602.005.iiTEXAS DEPARTMENT OF LICENSING AND REGULATION. (a) The department shall administer this chapter. If in administering this chapter there is a conflict between a provision of this chapter and a provision of Chapter 51, the provision of Chapter 51 controls.
(b)iiA reference in this chapter to the commission or a reference in other law to the Texas Cosmetology Commission means the department.
Sec.i1602.006.iiADVISORY COMMITTEE. The governor shall appoint an advisory committee of seven persons to advise the department in administering this chapter.
3502 78th Legislature — Regular Session 82nd Day
SECTIONi1J.15.iiSection 1951.002, Occupations Code, is amended by adding Subdivision (6-a) to read as follows:
(6-a)ii"Department" means the Texas Department of Licensing and Regulation.
SECTIONi1J.16.iiSubchapter A, Chapter 1951, Occupations Code, is amended by adding Sections 1951.008 and 1951.009 to read as follows:
Sec.i1951.008.iiTEXAS DEPARTMENT OF LICENSING AND REGULATION. (a) The department shall administer this chapter. If in administering this chapter there is a conflict between a provision of this chapter and a provision of Chapter 51, the provision of Chapter 51 controls.
(b)iiA reference in this chapter to the board or a reference in other law to the Texas Structural Pest Control Board means the department.
Sec.i1951.009.iiADVISORY COMMITTEE. The governor shall appoint an advisory committee of seven persons to advise the department in administering this chapter.
SECTIONi1J.17.iiSection 1.02(1), Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes), is amended to read as follows:
(1)ii"Department" ["Board"] means the Texas Department of Licensing and
Regulation [Board of Professional Geoscientists].
SECTIONi1J.18.iiSubchapter A, Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes), is amended by adding Sections 1.05 and 1.06 to read as follows:
Sec.i1.05.iiTEXAS DEPARTMENT OF LICENSING AND REGULATION. (a) The department shall administer this Act. If in administering this Act there is a conflict between a provision of this Act and a provision of Chapter 51, Occupations Code, the provision of Chapter 51 controls.
(b)iiA reference in this Act to the board or a reference in other law to the Texas Board of Professional Geoscientists means the department.
Sec.i1.06.iiADVISORY COMMITTEE. The governor shall appoint an advisory committee of seven persons to advise the department in administering this Act.
SECTIONi1J.19.iiOn September 1, 2003, the following laws are repealed:
(1)iiSections 651.001(2), 651.002, and 651.153, Occupations Code;
(2)iiSubchapters B, C, and E, Chapter 651, Occupations Code;
(3)iiSections 1071.002(1) and 1071.003, Occupations Code;
(4)iiSubchapters B, C, and E, Chapter 1071, Occupations Code;
(5)iiSections 1301.003, 1301.204, 1301.252, 1301.301, and 1301.303, Occupations Code;
(6)iiSubchapter C, Chapter 1301, Occupations Code;
(7)iiSections 1601.001(3), 1601.004, and 1601.153, Occupations Code;
(8)iiSubchapters B, C, and E, Chapter 1601, Occupations Code;
(9)iiSections 1602.001(1), 1602.004, and 1602.152, Occupations Code;
(10)iiSubchapters B, C, and E, Chapter 1602, Occupations Code;
(11)iiSections 1951.002(2), 1951.007, and 1951.206, Occupations Code;
(12)iiSubchapters C, D, and F, Chapter 1951, Occupations Code;
(13)iiSections 1.03, 3.01, 3.02(a), 3.03, 3.04, 3.05, and 3.06, Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes); and
Friday, May 30, 2003 SENATE JOURNAL 3503
(14)iiSubchapters B and E, Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes).
SECTIONi1J.20.iiNot later than November 1, 2003, the governor shall appoint an additional member to serve on the Texas Commission of Licensing and Regulation, as required by Section 51.052(a), Occupations Code, as amended by this article. The new member's term shall expire on February 1, 2007.
SECTIONi1J.21.iiOn September 1, 2003:
(1)iiall functions and activities relating to Chapter 651, Occupations Code, performed by the Texas Funeral Service Commission immediately before that date are transferred to the Texas Department of Licensing and Regulation;
(2)iia rule or form adopted by the Texas Funeral Service Commission that relates to Chapter 651, Occupations Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;
(3)iia reference in law or an administrative rule to the Texas Funeral Service Commission that relates to Chapter 651, Occupations Code, means the Texas Department of Licensing and Regulation;
(4)iia complaint, investigation, or other proceeding before the Texas Funeral Service Commission that is related to Chapter 651, Occupations Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Funeral Service Commission in an action or proceeding to which the Texas Funeral Service Commission is a party;
(5)iiall money, contracts, leases, property, and obligations of the Texas Funeral Service Commission related to Chapter 651, Occupations Code, are transferred to the Texas Department of Licensing and Regulation;
(6)iiall property in the custody of the Texas Funeral Service Commission related to Chapter 651, Occupations Code, is transferred to the Texas Department of Licensing and Regulation; and
(7)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Funeral Service Commission related to Chapter 651, Occupations Code, is transferred to the Texas Department of Licensing and Regulation.
SECTIONi1J.22.iiOn September 1, 2003:
(1)iiall functions and activities relating to Chapter 1071, Occupations Code, performed by the Texas Board of Professional Land Surveying immediately before that date are transferred to the Texas Department of Licensing and Regulation;
(2)iia rule or form adopted by the Texas Board of Professional Land Surveying that relates to Chapter 1071, Occupations Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;
(3)iia reference in law or an administrative rule to the Texas Board of Professional Land Surveying that relates to Chapter 1071, Occupations Code, means the Texas Department of Licensing and Regulation;
3504 78th Legislature — Regular Session 82nd Day
(4)iia complaint, investigation, or other proceeding before the Texas Board of Professional Land Surveying that is related to Chapter 1071, Occupations Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Board of Professional Land Surveying in an action or proceeding to which the Texas Board of Professional Land Surveying is a party;
(5)iiall money, contracts, leases, property, and obligations of the Texas Board of Professional Land Surveying related to Chapter 1071, Occupations Code, are transferred to the Texas Department of Licensing and Regulation;
(6)iiall property in the custody of the Texas Board of Professional Land Surveying related to Chapter 1071, Occupations Code, is transferred to the Texas Department of Licensing and Regulation; and
(7)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Board of Professional Land Surveying related to Chapter 1071, Occupations Code, is transferred to the Texas Department of Licensing and Regulation.
SECTIONi1J.23.iiOn September 1, 2003:
(1)iiall functions and activities relating to Chapter 1201, Occupations Code, performed by the Texas Department of Housing and Community Affairs immediately before that date are transferred to the Texas Department of Licensing and Regulation;
(2)iia rule or form adopted by the Texas Department of Housing and Community Affairs that relates to Chapter 1201, Occupations Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;
(3)iia reference in law or an administrative rule to the Texas Department of Housing and Community Affairs that relates to Chapter 1201, Occupations Code, means the Texas Department of Licensing and Regulation;
(4)iia complaint, investigation, or other proceeding before the Texas Department of Housing and Community Affairs that is related to Chapter 1201, Occupations Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Department of Housing and Community Affairs in an action or proceeding to which the Texas Department of Housing and Community Affairs is a party;
(5)iiall money, contracts, leases, property, and obligations of the Texas Department of Housing and Community Affairs related to Chapter 1201, Occupations Code, are transferred to the Texas Department of Licensing and Regulation;
(6)iiall property in the custody of the Texas Department of Housing and Community Affairs related to Chapter 1201, Occupations Code, is transferred to the Texas Department of Licensing and Regulation; and
(7)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Department of Housing and Community Affairs related to Chapter 1201, Occupations Code, is transferred to the Texas Department of Licensing and Regulation.
Friday, May 30, 2003 SENATE JOURNAL 3505
SECTIONi1J.24.iiOn September 1, 2003:
(1)iiall functions and activities relating to Chapter 1301, Occupations Code, performed by the Texas State Board of Plumbing Examiners immediately before that date are transferred to the Texas Department of Licensing and Regulation;
(2)iia rule or form adopted by the Texas State Board of Plumbing Examiners that relates to Chapter 1301, Occupations Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;
(3)iia reference in law or an administrative rule to the Texas State Board of Plumbing Examiners that relates to Chapter 1301, Occupations Code, means the Texas Department of Licensing and Regulation;
(4)iia complaint, investigation, or other proceeding before the Texas State Board of Plumbing Examiners that is related to Chapter 1301, Occupations Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas State Board of Plumbing Examiners in an action or proceeding to which the Texas State Board of Plumbing Examiners is a party;
(5)iiall money, contracts, leases, property, and obligations of the Texas State Board of Plumbing Examiners related to Chapter 1301, Occupations Code, are transferred to the Texas Department of Licensing and Regulation;
(6)iiall property in the custody of the Texas State Board of Plumbing Examiners related to Chapter 1301, Occupations Code, is transferred to the Texas Department of Licensing and Regulation; and
(7)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas State Board of Plumbing Examiners related to Chapter 1301, Occupations Code, is transferred to the Texas Department of Licensing and Regulation.
SECTIONi1J.25.iiOn September 1, 2003:
(1)iiall functions and activities relating to Chapter 1601, Occupations Code, performed by the State Board of Barber Examiners immediately before that date are transferred to the Texas Department of Licensing and Regulation;
(2)iia rule or form adopted by the State Board of Barber Examiners that relates to Chapter 1601, Occupations Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;
(3)iia reference in law or an administrative rule to the State Board of Barber Examiners that relates to Chapter 1601, Occupations Code, means the Texas Department of Licensing and Regulation;
(4)iia complaint, investigation, or other proceeding before the State Board of Barber Examiners that is related to Chapter 1601, Occupations Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the State Board of Barber Examiners in an action or proceeding to which the State Board of Barber Examiners is a party;
3506 78th Legislature — Regular Session 82nd Day
(5)iiall money, contracts, leases, property, and obligations of the State Board of Barber Examiners related to Chapter 1601, Occupations Code, are transferred to the Texas Department of Licensing and Regulation;
(6)iiall property in the custody of the State Board of Barber Examiners related to Chapter 1601, Occupations Code, is transferred to the Texas Department of Licensing and Regulation; and
(7)iithe unexpended and unobligated balance of any money appropriated by the legislature for the State Board of Barber Examiners related to Chapter 1601, Occupations Code, is transferred to the Texas Department of Licensing and Regulation.
SECTIONi1J.26.iiOn September 1, 2003:
(1)iiall functions and activities relating to Chapter 1602, Occupations Code, performed by the Texas Cosmetology Commission immediately before that date are transferred to the Texas Department of Licensing and Regulation;
(2)iia rule or form adopted by the Texas Cosmetology Commission that relates to Chapter 1602, Occupations Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;
(3)iia reference in law or an administrative rule to the Texas Cosmetology Commission that relates to Chapter 1602, Occupations Code, means the Texas Department of Licensing and Regulation;
(4)iia complaint, investigation, or other proceeding before the Texas Cosmetology Commission that is related to Chapter 1602, Occupations Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Cosmetology Commission in an action or proceeding to which the Texas Cosmetology Commission is a party;
(5)iiall money, contracts, leases, property, and obligations of the Texas Cosmetology Commission related to Chapter 1602, Occupations Code, are transferred to the Texas Department of Licensing and Regulation;
(6)iiall property in the custody of the Texas Cosmetology Commission related to Chapter 1602, Occupations Code, is transferred to the Texas Department of Licensing and Regulation; and
(7)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Cosmetology Commission related to Chapter 1602, Occupations Code, is transferred to the Texas Department of Licensing and Regulation.
SECTIONi1J.27.iiOn September 1, 2003:
(1)iiall functions and activities relating to Chapter 1951, Occupations Code, performed by the Texas Structural Pest Control Board immediately before that date are transferred to the Texas Department of Licensing and Regulation;
(2)iia rule or form adopted by the Texas Structural Pest Control Board that relates to Chapter 1951, Occupations Code, is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;
Friday, May 30, 2003 SENATE JOURNAL 3507
(3)iia reference in law or an administrative rule to the Texas Structural Pest Control Board that relates to Chapter 1951, Occupations Code, means the Texas Department of Licensing and Regulation;
(4)iia complaint, investigation, or other proceeding before the Texas Structural Pest Control Board that is related to Chapter 1951, Occupations Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Structural Pest Control Board in an action or proceeding to which the Texas Structural Pest Control Board is a party;
(5)iiall money, contracts, leases, property, and obligations of the Texas Structural Pest Control Board related to Chapter 1951, Occupations Code, are transferred to the Texas Department of Licensing and Regulation;
(6)iiall property in the custody of the Texas Structural Pest Control Board related to Chapter 1951, Occupations Code, is transferred to the Texas Department of Licensing and Regulation; and
(7)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Structural Pest Control Board related to Chapter 1951, Occupations Code, is transferred to the Texas Department of Licensing and Regulation.
SECTIONi1J.28.iiOn September 1, 2003:
(1)iiall functions and activities relating to the Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes) performed by the Texas Board of Professional Geoscientists immediately before that date are transferred to the Texas Department of Licensing and Regulation;
(2)iia rule or form adopted by the Texas Board of Professional Geoscientists that relates to the Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes) is a rule or form of the Texas Department of Licensing and Regulation and remains in effect until amended or replaced by that department;
(3)iia reference in law or an administrative rule to the Texas Board of Professional Geoscientists that relates to the Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes) means the Texas Department of Licensing and Regulation;
(4)iia complaint, investigation, or other proceeding before the Texas Board of Professional Geoscientists that is related to the Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes) is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Board of Professional Geoscientists in an action or proceeding to which the Texas Board of Professional Geoscientists is a party;
(5)iiall money, contracts, leases, property, and obligations of the Texas Board of Professional Geoscientists related to the Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes) are transferred to the Texas Department of Licensing and Regulation;
3508 78th Legislature — Regular Session 82nd Day
(6)iiall property in the custody of the Texas Board of Professional Geoscientists related to the Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes) is transferred to the Texas Department of Licensing and Regulation; and
(7)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Board of Professional Geoscientists related to the Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes) is transferred to the Texas Department of Licensing and Regulation.
SECTIONi1J.29.iiNot later than November 1, 2003, the governor shall appoint the advisory committees required by Sections 651.005, 1071.006, 1201.009, 1301.005, 1601.006, 1602.006, and 1951.009, Occupations Code, as added by this Act, and Section 1.06, Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes), as added by this Act.
ARTICLE 1K. ABOLITION OF OFFICE OF
STATE-FEDERAL RELATIONS
SECTIONi1K.01.iiSections 751.001(1) and (4), Government Code, are amended to read as follows:
(1)ii"Board" means the [Office of] State-Federal Relations Advisory [Policy]
Board.
(4)ii"State agency" means a state board, commission, department, institution, or officer in the executive branch of state government having statewide jurisdiction, including a state college or university.
SECTIONi1K.02.iiSection 751.002, Government Code, is amended to read as follows:
Sec.i751.002.iiOFFICE OF STATE-FEDERAL RELATIONS. [(a)] The Office
of State-Federal Relations is a division of the office of the governor [an agency of the
state and operates within the executive department.
[(b)iiThe office is subject to the administrative procedure law, Chapter 2001].
SECTIONi1K.03.iiThe heading to Section 751.004, Government Code, is amended to read as follows:
Sec.i751.004.iiAPPOINTMENT [AND TERM] OF DIRECTOR.
SECTIONi1K.04.iiSection 751.004(a), Government Code, is amended to read as follows:
(a)iiThe governor[, with the advice and consent of the senate,] shall appoint a
director of the office.
SECTIONi1K.05.iiSection 751.005(b), Government Code, is amended to read as follows:
(b)iiThe director shall:
(1)iihelp coordinate state and federal programs dealing with the same subject;
(2)iiinform the governor, the lieutenant governor, and the speaker of the
house of representatives [legislature] of federal programs that may be carried out in
the state or that affect state programs;
(3)iiprovide federal agencies and the United States Congress with information about state policy and state conditions on matters that concern the federal government;
Friday, May 30, 2003 SENATE JOURNAL 3509
(4)iiregularly provide the governor, the lieutenant governor, and the speaker
of the house of representatives [legislature] with information useful in measuring the
effect of federal actions on the state and local programs; and
(5)iiprepare and supply to the governor, the lieutenant governor, and the
speaker of the house of representatives [and all members of the legislature] an annual
report that:
(A)iidescribes the office's operations;
(B)iicontains the office's priorities and strategies for the following year;
(C)iidetails projects and legislation pursued by the office;
(D)iidiscusses issues in the following congressional session of interest to this state; and
(E)iicontains an analysis of federal funds availability and formulae[; and
[(6)iiprepare annually a complete and detailed written report accounting for
all funds received and disbursed by the office during the preceding fiscal year].
SECTIONi1K.06.iiThe heading to Section 751.006, Government Code, is amended to read as follows:
Sec.i751.006.iiSTAFF[; PERSONNEL POLICIES].
SECTIONi1K.07.iiSection 751.006(a), Government Code, is amended to read as follows:
(a)iiThe director may employ staff necessary to carry out the director's powers
and duties under this chapter. [The director or the director's designee shall provide to
office employees, as often as necessary, information regarding their qualification for
employment under this chapter and their responsibilities under applicable laws
relating to standards of conduct for state employees.]
SECTIONi1K.08.iiThe heading to Section 751.010, Government Code, is amended to read as follows:
Sec.i751.010.ii[OFFICE OF] STATE-FEDERAL RELATIONS ADVISORY
[POLICY] BOARD.
SECTIONi1K.09.iiSection 751.010, Government Code, is amended by amending Subsections (a), (e), and (f) and adding Subsection (g) to read as follows:
(a)iiThe governor may appoint members to an advisory board to assist in the
administration of this chapter [Office of State-Federal Relations Advisory Policy
Board consists of:
[(1)iithe governor;
[(2)iithe lieutenant governor; and
[(3)iithe speaker of the house of representatives].
(e)iiThe board may [shall] meet before the beginning of each congressional
session and at the call of the director [presiding officer].
(f)iiThe board may [shall] work with the director to hold periodic meetings [in
the city of Austin at times determined by the presiding officer] to discuss upcoming
federal activities and issues with state agency representatives.
(g)iiA member of the advisory board may not receive compensation, but is entitled to reimbursement of the member's necessary and actual expenses incurred while performing duties under this chapter, subject to any applicable limitation on reimbursement provided by general law or the General Appropriations Act.
3510 78th Legislature — Regular Session 82nd Day
SECTIONi1K.10.iiSections 751.012(c) and (e), Government Code, are amended to read as follows:
(c)iiA contract under this section must include provisions under which staff of the other state agency:
(1)iireport directly to the director;
(2)iireport [directly] to the other state [that] agency's administrative head or
the presiding officer of the other state [that] agency's governing body;
(3)i[(2)]iihave an officially recognized role in the other state [that] agency's
budget planning process;
(4)i[(3)]iiprovide periodic updates of activities to the other state [at meetings
of that] agency's governing body; and
(5)i[(4)]iireceive a salary established under Subsection (d).
(e)iiA state agency identified by the Legislative Budget Board or the governor's office of budget, planning, and policy as receiving significant federal funding or being significantly affected by federal policy decisions, other than a state agency that is headed by a statewide-elected official, shall:
(1)iidevelop a plan of state-federal coordination;
(2)iistudy the benefits of entering a contract under Subsection (a); and
(3)iisubmit the coordination plan and study to the office and to the Legislative Budget Board.
SECTIONi1K.11.iiChapter 751, Government Code, is amended by adding Section 751.015 to read as follows:
Sec.i751.015.iiAGENCY COMMUNICATIONS. A state agency must, to the extent practicable, contact the office before the agency provides information to a federal agency or to the United States Congress about a state policy or state circumstances. This section does not apply to a state agency that is headed by a statewide-elected official.
SECTIONi1K.12.iiSubchapter B, Chapter 751, Government Code, is transferred to Chapter 401, Government Code, redesignated as Subchapter G, Chapter 401, Government Code, and amended to read as follows:
SUBCHAPTER G [B]. FEDERAL FUNDS MANAGEMENT
Sec.i401.151i[751.021].iiDEFINITION. In this subchapter, "federal formula
funds" means only those funds coming to the state based on federal funding formulas
or as otherwise legislated by congress, excluding those funds known as federal
discretionary grant funds.
Sec.i401.152i[751.022].iiPOWERS AND DUTIES. (a) The governor's office
of budget, planning, and policy has primary responsibility for monitoring,
coordinating, and reporting on the state's efforts to ensure receipt of an equitable share
of federal formula funds.
(b)iiThe governor's office of budget, planning, and policy shall:
(1)iiserve as the state's clearinghouse for information on federal formula funds;
(2)iiprepare reports on federal funds and earned federal formula funds;
(3)iianalyze proposed and pending federal and state legislation to determine whether the legislation would have a significant negative effect on the state's ability to receive an equitable share of federal formula funds;
Friday, May 30, 2003 SENATE JOURNAL 3511
(4)iimake recommendations for coordination between state agencies and local governmental entities and between state agencies; and
(5)iiadopt rules under the rule-making procedures of the administrative procedure law, Chapter 2001, Government Code, as necessary to carry out the responsibilities assigned by this subchapter.
(c)iiThe governor's office of budget, planning, and policy shall annually prepare a comprehensive report to the governor and legislature on the effectiveness of the state's efforts to ensure a receipt of an equitable share of federal formula funds for the preceding federal fiscal year. The report must include:
(1)iian executive summary that provides an overview of the major findings and recommendations included in the report;
(2)iia comparative analysis of the state's receipt of federal formula funds relative to other states, prepared using the best available sources of data;
(3)iian analysis of federal formula funding trends that may have a significant effect on resources available to the state; and
(4)iirecommendations, developed in consultation with the Legislative
Budget Board, the Office of State-Federal Relations [Governor's Office of Budget and
Planning], and the comptroller, for any state legislative or administrative action
necessary to increase the state's receipt of federal formula funds.
[Sec.i751.023.iiAGENCY COMMUNICATIONS. A state agency shall, to the
extent practicable, contact the office before the agency provides information to a
federal agency or to the United States Congress about state policy or conditions. This
section does not apply to a state agency that is headed by a statewide-elected official.]
Sec.i401.153i[751.024].iiREPORTS CONCERNING GRANT FUNDS. (a)
Each agency and each institution of higher education shall report to [the office,] the
Legislative Budget Board[,] and the governor's office of budget, planning, and policy
[budget division of the governor's office]:
(1)iieach application or request made to the United States government for grant funds;
(2)iithe award or designation, by the United States government, of any funds for expenditure by a state agency; and
(3)iiwaivers of grant requirements.
(b)iiIn consultation with the governor's office of budget, planning, and policy
[director], the Legislative Budget Board may prescribe reporting procedures and time
schedules necessary to implement Subsection (a).
SECTIONi1K.13.iiSection 322.004, Government Code, is amended by adding Subsection (e) to read as follows:
(e)iiThe director may maintain office space at locations chosen by the director, including at locations outside of the state.
SECTIONi1K.14.ii(a) The heading to Subchapter A, Chapter 751, Government Code, is repealed.
(b)iiThe following sections of the Government Code are repealed:
(1)iiSection 751.003;
(2)iiSection 751.005(d);
(3)iiSections 751.006(b)-(f);
(4)iiSection 751.008;
3512 78th Legislature — Regular Session 82nd Day
(5)iiSections 751.010(b)-(d);
(6)iiSection 751.011; and
(7)iiSection 751.012(b).
SECTIONi1K.15.iiOn September 1, 2003:
(1)iiall powers, duties, obligations, rights, contracts, records, real and personal property, funds, appropriations, money, and authorized full-time equivalent (FTE) positions of the Office of State-Federal Relations are transferred to the office of the governor;
(2)iian employee of the Office of State-Federal Relations becomes an employee of the office of the governor;
(3)iia rule, policy, procedure, report, or decision of the Office of State-Federal Relations continues in effect as a rule, policy, procedure, report, or decision of the office of the governor until superseded by an act of the office of the governor; and
(4)iia reference in another law to the Office of State-Federal Relations means the office of the governor.
ARTICLE 1L.iiSTATEWIDE COORDINATION OF
PUBLIC TRANSPORTATION
SECTIONi1L.01.iiSubtitle K, Title 6, Transportation Code, is amended by adding Chapter 461 to read as follows:
CHAPTER 461.iiSTATEWIDE COORDINATION OF
PUBLIC TRANSPORTATION
Sec.i461.001.iiLEGISLATIVE INTENT AND CONSTRUCTION. (a) Public transportation services are provided in this state by many different entities, both public and private. The multiplicity of public transportation providers and services, coupled with a lack of coordination between state oversight agencies, has generated inefficiencies, overlaps in service, and confusion for consumers. It is the intent of this chapter:
(1)iito eliminate waste in the provision of public transportation services;
(2)iito generate efficiencies that will permit increased levels of service; and
(3)iito further the state's efforts to reduce air pollution.
(b)iiThis chapter shall be liberally construed to achieve its purposes.
Sec.i461.002.iiDEFINITIONS. In this chapter:
(1)ii"Public transportation provider" means any entity that provides public transportation services if it is a governmental entity or if it receives financial assistance from a governmental entity, whether state, local, or federal. The term does not include private carriers that do not receive financial assistance from a governmental entity. It also does not include a person who provides intercity rail or bus service, commercial air transportation, water transportation, or nonstop service to or from a point located outside this state. If a person provides both public transportation services and services that are not public transportation services, that person is included within the term only with regard to the provision of public transportation services and to the extent of those public transportation services.
Friday, May 30, 2003 SENATE JOURNAL 3513
(2)ii"Public transportation services" means any conveyance of passengers and their hand-carried baggage by a governmental entity or by a private entity if the private entity receives financial assistance for that conveyance from any governmental entity. It does not include intercity rail or bus service, commercial air transportation, water transportation, or nonstop service to or from a point located outside this state.
Sec.i461.003.iiRULES OF TEXAS TRANSPORTATION COMMISSION. (a) The commission by rule may:
(1)iirequire a state agency that is responsible for ensuring the provision of public transportation services to contract with the department for the department to assume the responsibilities of that agency relating to the provision of public transportation services; and
(2)iirequire a public transportation provider to provide detailed information on its provision of public transportation services, including revenues, routes, maps, categories of passengers served, number of passengers served, and equipment use and condition.
(b)iiExcept with regard to health and human services programs funded by this state, the commission may not direct the planning or operations of an authority created or operating under Chapter 451, 452, or 453.
(c)iiThe commission shall adopt other rules, including rules defining terms, necessary to implement this chapter.
Sec.i461.004.iiDUTIES OF TEXAS DEPARTMENT OF TRANSPORTATION. (a) The department shall identify:
(1)iioverlaps and gaps in the provision of public transportation services, including services that could be more effectively provided by existing, privately funded transportation resources;
(2)iiunderused equipment owned by public transportation providers; and
(3)iiinefficiencies in the provision of public transportation services by any public transportation provider.
(b)iiThe department may contract with any public or private transportation provider for the department to arrange for the provision of public transportation services.
Sec.i461.005.iiELIMINATION OF OVERLAPPING SERVICE. (a) To eliminate waste and maximize efficiency, the department shall encourage public transportation providers to agree on the allocation of specific services and service areas among the providers. The department may incorporate these discussions in planning processes such as the development of the statewide transportation improvement program or a local transportation improvement plan.
(b)iiIf public transportation providers do not reach an agreement on a service plan under Subsection (a), the department may develop an interim service plan for that area.
(c)iiThe department may require that all or a percentage of the vehicles used to provide public transportation services comply with specified emissions standards. The standards may vary among geographic areas based on the need of each area to reduce levels of air pollution. This subsection does not apply to an authority created under Chapter 451, 452, or 453.
3514 78th Legislature — Regular Session 82nd Day
Sec.i461.006.iiDUTIES OF PUBLIC TRANSPORTATION PROVIDERS. Each public transportation provider shall cooperate with the department in eliminating waste and ensuring efficiency and maximum coverage in the provision of public transportation services.
Sec.i461.007.iiINCENTIVES FOR EFFICIENCY. (a) Notwithstanding any other law, including a law establishing a formula for the allocation of public transportation grants, the commission may increase or reduce the amount of a grant made to a public transportation provider based on whether the public transportation provider is complying fully with this chapter.
(b)iiNotwithstanding any other law, the commission may consider whether a public transportation provider in a geographic area of this state is complying fully with this chapter in executing the commission's other responsibilities relating to that area.
SECTIONi1L.02.iiSection 455.0015, Transportation Code, is amended by amending Subsection (b) and adding Subsections (c) and (d) to read as follows:
(b)iiIt is the intent of the legislature that, whenever possible, and to the maximum extent feasible, the existing network of transportation providers, and in particular the fixed route components of the existing networks, be used to meet the client transportation requirements of the state's social service agencies and their agents. The legislature recognizes the contributions of nonprofit entities dedicated to providing social services and related activities and encourages the continued community involvement of these entities in this area. The legislature likewise recognizes the potential cost savings and other benefits of utilizing existing private sector transportation resources. The department will contract with and promote the use of private sector transportation resources to the maximum extent feasible consistent with the goals of this subsection.
(c)iiEach health and human services agency of this state shall contract with the department for the department to assume all responsibilities of the health and human services agency relating to the provision of transportation services for clients of eligible programs.
(d)iiThe department may contract with any public or private transportation provider or with any regional transportation broker for the provision of public transportation services.
SECTIONi1L.03.iiSection 455.004, Transportation Code, is amended to read as follows:
Sec.i455.004.iiPUBLIC TRANSPORTATION ADVISORY COMMITTEE. (a) A public transportation advisory committee consisting of nine members shall:
(1)iiadvise the commission on the needs and problems of the state's public transportation providers, including the methods for allocating state public transportation money;
(2)iicomment on rules involving public transportation during development of
the rules and before the commission finally adopts the rules unless an emergency
requires immediate commission action; [and]
(3)iiadvise the commission on the implementation of Chapter 461; and
(4)iiperform any other duty determined by the commission.
Friday, May 30, 2003 SENATE JOURNAL 3515
(b)iiThe commission shall appoint members of the advisory committee. The
membership of the committee shall [governor, the lieutenant governor, and the
speaker of the house of representatives each shall appoint three members of the
committee. The appointing officers shall allocate among themselves the authority for
appointment of members with different types of qualifications. The committee must]
include:
(1)iifour members who [one member to] represent a diverse cross-section of
public transportation providers [in rural areas];
(2)iithree members who [one member to] represent a diverse cross-section of
transportation users [municipal transit systems in urban areas with populations of less
than 200,000]; and
(3)iitwo members who [one member to represent metropolitan transit
authorities in urban areas with populations of 200,000 or more;
[(4)iione member to represent transportation providers for persons with
disabilities and the elderly; and
[(5)iifive members who have a knowledge of and interest in public
transportation to] represent the general public.
(c)iiA member serves at the pleasure of the commission [officer appointing the
member]. A 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.
(d)iiThe public transportation advisory committee shall meet [quarterly or] as
requested by the commission.
(e)iiThe commission may adopt rules to govern the operation of the advisory committee.
SECTIONi1L.04.iiSection 461.012, Health and Safety Code, is amended by adding Subsection (g) to read as follows:
(g)iiThe commission shall contract with the Texas Department of Transportation for the Texas Department of Transportation to assume all responsibilities of the commission relating to the provision of transportation services for clients of eligible programs.
SECTIONi1L.05.iiSection 533.012, Health and Safety Code, is amended to read as follows:
Sec.i533.012.iiCOOPERATION OF STATE AGENCIES. (a) At the department's request, all state departments, agencies, officers, and employees shall cooperate with the department in activities that are consistent with their functions.
(b)iiThe department shall contract with the Texas Department of Transportation for the Texas Department of Transportation to assume all responsibilities of the department relating to the provision of transportation services for clients of eligible programs.
SECTIONi1L.06.iiSection 22.001, Human Resources Code, is amended by adding Subsection (e) to read as follows:
(e)iiThe department shall contract with the Texas Department of Transportation for the Texas Department of Transportation to assume all responsibilities of the department relating to the provision of transportation services for clients of eligible programs.
3516 78th Legislature — Regular Session 82nd Day
SECTIONi1L.07.iiSection 40.002, Human Resources Code, is amended by adding Subsection (f) to read as follows:
(f)iiThe department may contract with the Texas Department of Transportation for the Texas Department of Transportation to assume all responsibilities of the department relating to the provision of transportation services for clients of eligible programs.
SECTIONi1L.08.iiSection 91.021, Human Resources Code, is amended by adding Subsection (g) to read as follows:
(g)iiThe commission shall contract with the Texas Department of Transportation for the Texas Department of Transportation to assume all responsibilities of the commission relating to the provision of transportation services for clients of eligible programs.
SECTIONi1L.09.iiSection 101.0256, Human Resources Code, is amended to read as follows:
Sec.i101.0256.iiCOORDINATED ACCESS TO LOCAL SERVICES. (a) The department and the Texas Department of Human Services shall develop standardized assessment procedures to share information on common clients served in a similar service region.
(b)iiThe department shall contract with the Texas Department of Transportation for the Texas Department of Transportation to assume all responsibilities of the department relating to the provision of transportation services for clients of eligible programs.
SECTIONi1L.10.iiSection 111.0525, Human Resources Code, is amended by adding Subsection (d) to read as follows:
(d)iiThe commission shall contract with the Texas Department of Transportation for the Texas Department of Transportation to assume all responsibilities of the commission relating to the provision of transportation services for clients of eligible programs.
SECTIONi1L.11.iiSection 301.063, Labor Code, is amended by adding Subsection (f) to read as follows:
(f)iiThe commission shall contract with the Texas Department of Transportation for the Texas Department of Transportation to assume all responsibilities of the commission relating to the provision of transportation services for clients of eligible programs.
SECTIONi1L.12.iiLEGISLATIVE INTENT REGARDING PROVISION OF HEALTH AND HUMAN SERVICE TRANSPORTATION THROUGH THE TEXAS DEPARTMENT OF TRANSPORTATION. It is the intent of the legislature that the provision of health and human service transportation through the Texas Department of Transportation will improve the delivery of transportation services to clients and enhance their access to transportation services. Furthermore, it is the intent of the legislature that these services be provided in a manner that will generate efficiencies in operation, control costs, and permit increased levels of service. The Texas Department of Transportation shall encourage cooperation and coordination among transportation providers, regional transportation brokers, and actual and potential clients in an effort to achieve the stated legislative goals.
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SECTIONi1L.13.iiAny funds that are used by the Texas Department of Transportation to implement the transportation services provided in Sections 1L.02, 1L.04, 1L.05, 1L.06, 1L.07, 1L.08, 1L.09, 1L.10, and 1L.11 of this article shall be accounted for and budgeted separately from other funds appropriated to the Texas Department of Transportation for any other public transportation program or budget strategy.
ARTICLE 1M. GOVERNOR'S BUDGET AUTHORITY
SECTIONi1M.01.iiSection 401.0445(b), Government Code, is amended to read as follows:
(b)iiIn the budget, the governor shall show:
(1)iithe list of appropriations for the current year preceding the biennium for which appropriations are sought and recommended;
(2)iiexpenditures for [each of] the year [two full years] preceding the current
year; and
(3)iithe amounts requested by the various agencies and the amounts recommended by the governor for each of the years of the biennium.
SECTIONi1M.02.iiSection 401.046(a), Government Code, is amended to read as follows:
(a)iiThe governor shall deliver a copy of the governor's budget to each member
of the legislature before the governor gives the message to the legislature required by
Section 9, Article IV, Texas Constitution, at the commencement [not later than the
sixth day] of each regular legislative session.
SECTIONi1M.03.iiSection 401.047, Government Code, is repealed.
SECTIONi1M.04.iiChapter 2053, Government Code, is repealed.
ARTICLE 1N. COMMISSIONER OF INSURANCE
SECTIONi1N.01.iiSection 31.022(a), Insurance Code, is amended to read as follows:
(a)iiThe governor, with the advice and consent of the senate, shall appoint the
commissioner. The commissioner serves a one-year [two-year] term that expires on
February 1 [of each odd-numbered year].
SECTIONi1N.02. Section 31.023, Insurance Code, is amended to read as follows:
Sec.i31.023.iiQUALIFICATIONS. The commissioner must[:
[(1)iibe a competent and experienced administrator;
[(2)]iibe well informed and qualified in the field of insurance and insurance
regulation[;] and
[(3)iihave at least 10 years of experience as an executive] in the
administration of business or government [or as a practicing attorney or certified
public accountant, with at least five years of that experience in the field of insurance
or insurance regulation].
SECTIONi1N.03.iiSection 31.027(a), Insurance Code, is amended to read as follows:
(a)iiIt is a ground for removal from office if the commissioner:
(1)iidoes not have at the time of appointment the qualifications required by Section 31.023;
3518 78th Legislature — Regular Session 82nd Day
(2)ii[does not maintain during service as commissioner the qualifications
required by Section 31.023;
[(3)]iiviolates a prohibition established by Section 33.001, 33.003, 33.004,
or 33.005; or
(3)i[(4)]iicannot, because of illness or disability, discharge the
commissioner's duties for a substantial part of the commissioner's term.
SECTIONi1N.04.iiThe change in law made by this Act to Sections 31.022, 31.023, and 31.027, Insurance Code, applies only to the appointment of the commissioner of insurance on or after the effective date of this Act. A commissioner of insurance appointed before the effective date of this Act is governed by the law as it existed immediately before that date, and that law is continued in effect for this purpose.
ARTICLE 1O. REVIEW OF UNIVERSITY SYSTEM ADMINISTRATION
SECTIONi1O.01.iiSubchapter C, Chapter 61, Education Code, is amended by adding Section 61.0515 to read as follows:
Sec.i61.0515.iiREVIEW OF UNIVERSITY SYSTEM ADMINISTRATION. (a) The board shall perform a review of the organization and operations of each university system office to:
(1)iiidentify appropriate organizational structures for university systems and system offices;
(2)iiidentify and quantify workforce and other resources at each system office used to provide services and functions common to each system office; and
(3)iidetermine the extent to which system administration employees are performing services and functions that are also provided by employees of individual component institutions of each university system.
(b)iiIn the review, the board shall identify the number and types of administrative and executive positions in the administration of each university system, and shall examine each major function, service, or activity performed by university system offices, including:
(1)iicentral administration;
(2)iiacademic affairs coordination and support;
(3)iigeneral counsel and other legal services;
(4)iibudgeting, accounting, and data reporting;
(5)iifiscal management;
(6)iifacilities planning and construction;
(7)iigovernmental relations;
(8)iiaudit services;
(9)iireal estate management;
(10)iiinformation technology services; and
(11)iiaircraft operation and usage.
(c)iiNot later than November 1, 2004, the board shall prepare a report of the review and deliver the report to the governor, lieutenant governor, speaker of the house of representatives, Legislative Budget Board, and chair of the standing committee of each house of the legislature with primary jurisdiction over higher education. In the report, the board shall state its findings and identify opportunities for legislative and administrative action relating to:
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(1)iithe reorganization of university system offices and functions;
(2)iithe consolidation or reorganization of university systems; and
(3)iithe consolidation or centralization of functions, services, or activities of university system offices.
(d)iiIn the report, the board shall identify potential reductions in personnel and other cost savings associated with each legislative or administrative action the board identifies under Subsection (c).
(e)iiThis section expires September 1, 2005.
ARTICLE 1P. ABOLITION OF TEXAS COMMISSION ON
PRIVATE SECURITY
SECTIONi1P.01.iiSubchapter A, Chapter 1702, Occupations Code, is amended by adding Section 1702.005 to read as follows:
Sec.i1702.005.iiCOMMISSION ABOLISHED AND FUNCTIONS TRANSFERRED. (a) The commission is abolished, and all powers, duties, personnel, property, assets, and obligations of the commission are transferred to the Department of Public Safety of the State of Texas. The validity of a prior action of the commission is not affected by the abolishment.
(b)iiAll rules of the commission relating to a transferred power or duty remain in effect as rules of the Department of Public Safety of the State of Texas until amended or repealed by the Department of Public Safety of the State of Texas.
(c)iiA reference in this chapter or another law to the commission means the Department of Public Safety of the State of Texas.
ARTICLE 1Q. MEMBERS OF PARKS AND WILDLIFE COMMISSION
SECTIONi1Q.01.iiSection 11.012(d), Parks and Wildlife Code, is amended to read as follows:
(d)iiIn making appointments under this section, the governor:
(1)iishall:
(A)iiattempt to include persons with expertise in diverse fields, including fields such as historic preservation, conservation, and outdoor recreation; and
(B)iiconsider the commission's composition in terms of:
(i)iithe geographical areas represented by members of the commission; and
(ii)iithe appropriate balance of representatives from rural and urban areas; and
(2)iimay include persons who have an interest in and knowledge of hunting, fishing, wildlife, environmental concerns, land or water use issues, or water quality issues.
SECTIONi1Q.02.ii(a) As soon as possible on or after September 1, 2003, the governor shall appoint nine members to the Parks and Wildlife Commission under Section 11.012, Parks and Wildlife Code, as amended by this Act. The governor shall designate:
(1)iithree members, including one public member, for terms expiring February 1, 2005;
(2)iithree members, including one public member, for terms expiring February 1, 2007; and
3520 78th Legislature — Regular Session 82nd Day
(3)iithree members, including one public member, for terms expiring February 1, 2009.
(b)iiThe governor may reappoint a person who served as a member of the Parks and Wildlife Commission before September 1, 2003.
(c)iiThe position of a member of the Parks and Wildlife Commission serving immediately before September 1, 2003, is abolished at the time five or more of the newly appointed directors qualify for office. Until the abolition of the members' positions occurs under this section, the members serving immediately before September 1, 2003, have the same powers and duties that the members had immediately before that date and the commission continues to be composed in the way it was composed before that date, and the former law is continued in effect for that purpose.
ARTICLE 1R. DESIGNATION OF PRESIDING OFFICERS
SECTIONi1R.01.iiChapter 651, Government Code, is amended by adding Section 651.008 to read as follows:
Sec.i651.008.iiAPPOINTMENT OF PRESIDING OFFICERS BY GOVERNOR. (a) In this section, "state agency" means a department, commission, board, office, council, authority, or other agency in the executive branch of state government that is created by the constitution or a statute of this state, including:
(1)iia university system or institution of higher education as defined by Section 61.003, Education Code; and
(2)iia river authority as defined by Section 30.003, Water Code.
(b)iiNotwithstanding other law, the governor may designate a member of the governing body of each state agency as the presiding officer of that governing body to serve in that capacity at the pleasure of the governor.
ARTICLE 1S. ADMINISTRATION OF THE TEXAS DEPARTMENT OF
CRIMINAL JUSTICE
SECTIONi1S.01.iiChapter 493, Government Code, is amended by adding Sections 493.0022 and 493.0023 to read as follows:
Sec.i493.0022.iiREPORT TO THE LEGISLATURE. The department shall report to the legislature not later than December 31, 2004, on the costs and feasibility of providing cognitive behavior training to corrections officers. This section expires January 1, 2005.
Sec.i493.0023.iiSTUDY REGARDING EFFICIENT ADMINISTRATION. (a) The department, in consultation with representatives from The University of Texas or Texas A&M University who are specialists in corporate reorganization and efficiency, shall conduct a study to evaluate the organizational arrangement and efficient administration of the department. The study shall include an evaluation of possible means by which to:
(1)iireduce inmate transportation costs as well as costs incurred in transporting food and other consumables to prison units;
(2)iimaximize the profitable and productive use of manufacturing capital investments; and
(3)iireduce costs and prevent idleness of inmates by aggressive use of inmate labor in performing construction, repairs, and maintenance.
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(b)iiThe department shall conduct an analysis of complaint procedures and policies to eliminate repetitive complaints for which there is a substantive basis. As part of the analysis, the department shall:
(1)iidetermine the number of complaints the department receives in various subject area categories;
(2)iipropose policy changes to eliminate the basis for most basic complaints without endangering public safety or efficient operations; and
(3)iiseek to reduce the number of complaints received by the department and the time required to respond to those complaints.
(c)iiThe department shall submit an annual report to the legislature on the progress of the study and the analysis conducted under this section not later than December 1, 2003, and December 1, 2004.
(d)iiThis section expires January 1, 2005.
PART 2. FEES AND OTHER FINANCIAL ISSUES
ARTICLE 2A. TEXAS ENTERPRISE FUND
SECTIONi2A.01.iiSubchapter E, Chapter 481, Government Code, is amended by adding Section 481.078 to read as follows:
Sec.i481.078.iiTEXAS ENTERPRISE FUND. (a) In this section, "account" means the Texas Enterprise Fund.
(b)iiThe Texas Enterprise Fund is an account in the general revenue fund.
(c)iiThe account consists of:
(1)iimoney appropriated by the legislature for the purposes of this section;
(2)iimoney transferred to the account at the direction of the legislature; and
(3)iigifts, grants, and other donations received by the governor or the department intended for the account.
(d)iiMoney in the account may be used only for economic development, infrastructure development, community development, job training programs, job creation programs, and business incentives. Money in the account may be used by the comptroller temporarily for cash management purposes.
(e)iiInterest earned on the principal of the account shall be deposited to the credit of the economic stabilization fund.
(f)iiThe governor may negotiate on behalf of the state regarding awarding by grant money appropriated from the account. The governor may award money appropriated from the account only with the express written prior approval of the lieutenant governor and the speaker of the house of representatives.
(g)iiBefore awarding a grant under this section, the governor and the entity to be awarded the grant money may enter into a written agreement that specifies that:
(1)iiif all or any portion of the amount of the grant is used to build a capital improvement:
(A)iithe state retains a lien or other interest in the capital improvement in proportion to the percentage of the grant amount used to pay for the capital improvement; and
(B)iithe recipient of the grant shall, if the capital improvement is sold:
(i)iirepay to the state the grant money used to pay for the capital improvement, with interest at the rate and according to other terms provided by the agreement; and
3522 78th Legislature — Regular Session 82nd Day
(ii)iishare with the state a proportionate amount of any profit realized from the sale; and
(2)iiif, as of a date certain as provided in the agreement, the grant recipient has not used grant money awarded under this section for the purposes for which the grant was intended, the recipient shall repay that amount and any related interest to the state at the agreed rate and terms.
ARTICLE 2B. FEES FOR RAIL SAFETY PROGRAM
SECTIONi2B.01.iiArticle 6448a, Revised Statutes, is amended to read as follows:
Art.i6448a.iiIMPLEMENTATION OF FEDERAL RAILROAD SAFETY ACT OF 1970.
Sec.i1.iiThe Railroad Commission of Texas is hereby authorized to perform any act and issue any rules and orders as permitted by the Federal Railroad Safety Act of 1970 (45 U.S.C.A. 431 et seq.).
Sec.i2.ii(a) The Railroad Commission of Texas by rule shall adopt and provide for the collection of reasonable fees to be assessed annually against railroads operating within this state. The amount of a fee imposed under this article may not exceed an amount estimated by the commission to be sufficient in the aggregate to recover the costs of administering the commission's rail safety program.
(b)iiTo provide for the equitable allocation of the cost of administering the commission's rail safety program among railroads, the commission may consider the gross ton miles for railroad operations within this state for each railroad operating in the state when assessing a fee.
(c)iiA fee collected under this section shall be deposited to the credit of the general revenue fund to be used for the rail safety program.
ARTICLE 2C. FINANCING OF STATE FACILITY EXPENDITURES
SECTIONi2C.01.iiChapter 2113, Government Code, is amended by adding Subchapter E to read as follows:
SUBCHAPTER E.iiRESTRICTIONS ON CAPITAL EXPENDITURES
Sec.i2113.301.iiPREFERENCE FOR FINANCING CERTAIN CAPITAL EXPENDITURES WITH MONEY GENERATED BY UTILITY COST SAVINGS CONTRACT. (a) In this section:
(1)ii"State facility purpose" means a purpose related to:
(A)iithe maintenance of a state-owned or state-leased building or facility; or
(B)iia project as defined by Section 2166.001, including a project described by Section 2166.003.
(2)ii"Utility cost savings contract" means a contract under Subchapter I, Chapter 2166, or other law that guarantees utility cost savings for energy conservation measures to reduce energy or water consumption or to reduce operating costs of governmental facilities.
(b)iiBefore a state agency may use appropriated money to make a capital expenditure for a state facility purpose, the state agency must determine whether the expenditure could be financed with money generated by a utility cost savings contract.
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(c)iiIf it is practicable to do so, a state agency that is using appropriated money must finance a capital expenditure for a state facility purpose with money generated by a utility cost savings contract.
(d)iiIf it is not practicable for a state agency that is using appropriated money to finance a capital expenditure for a state facility purpose with money generated by a utility cost savings contract, the state agency must provide justification to the Legislative Budget Board for the capital expenditure.
(e)iiIn determining under Subsection (b) whether a capital expenditure could be financed by a utility cost savings contract, a state agency must consider whether utility cost savings generated by any department of that agency could be a potential means of financing a capital expenditure for any department of that agency. Money generated by a utility cost savings in one department of a state agency may be used to finance capital expenditures for a state facility purpose in any department of that agency.
ARTICLE 2D. SALES TAX ON MOTOR VEHICLES
SECTIONi2D.01.iiSection 152.002, Tax Code, is amended by adding Subsection (f) to read as follows:
(f)iiNotwithstanding Subsection (a), the total consideration of a used motor vehicle is the amount on which the tax is computed as provided by Section 152.0412.
SECTIONi2D.02.iiSection 152.041(a), Tax Code, is amended to read as follows:
(a)iiThe tax assessor-collector of the county in which an application for registration or for a Texas certificate of title is made shall collect taxes imposed by this chapter, subject to Section 152.0412, unless another person is required by this chapter to collect the taxes.
SECTIONi2D.03.iiSubchapter C, Chapter 152, Tax Code, is amended by adding Section 152.0412 to read as follows:
Sec.i152.0412.iiSTANDARD PRESUMPTIVE VALUE; USE BY TAX ASSESSOR-COLLECTOR. (a) In this section, "standard presumptive value" means the average retail value of a motor vehicle as determined by the Texas Department of Transportation, based on a nationally recognized motor vehicle industry reporting service.
(b)iiIf the amount paid for a motor vehicle subject to the tax imposed by this chapter is equal to or greater than the standard presumptive value of the vehicle, a county tax assessor-collector shall compute the tax on the amount paid.
(c)iiIf the amount paid for a motor vehicle subject to the tax imposed by this chapter is less than the standard presumptive value of the vehicle, a county tax assessor-collector shall compute the tax on the standard presumptive value unless the purchaser establishes the retail value of the vehicle as provided by Subsection (d).
(d)iiA county tax assessor-collector shall compute the tax imposed by this chapter on the retail value of a motor vehicle if:
(1)iithe retail value is shown on an appraisal certified by an adjuster licensed under Article 21.07-4, Insurance Code, or by a motor vehicle dealer operating under Subchapter B, Chapter 503, Transportation Code;
(2)iithe appraisal is on a form prescribed by the comptroller for that purpose; and
(3)iithe purchaser of the vehicle obtains the appraisal not later than the 20th day after the date of purchase.
3524 78th Legislature — Regular Session 82nd Day
(e)iiOn request, a motor vehicle dealer operating under Subchapter B, Chapter 503, Transportation Code, shall provide a certified appraisal of the retail value of a motor vehicle. The comptroller by rule shall establish a fee that a dealer may charge for providing the certified appraisal. The county tax assessor-collector shall retain a copy of a certified appraisal received under this section.
(f)iiThe Texas Department of Transportation shall maintain information on the standard presumptive values of motor vehicles as part of the department's registration and title system. The department shall update the information at least quarterly each calendar year.
SECTIONi2D.04.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 registration and title 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.
(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 $23 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.
ARTICLE 2E. OVERSIGHT OF REGIONAL
PLANNING COMMISSIONS
SECTIONi2E.01.iiThe heading to Section 391.009, Local Government Code, is amended to read as follows:
Sec.i391.009.iiROLE OF STATE AUDITOR, GOVERNOR, AND STATE AGENCIES.
SECTIONi2E.02.iiSection 391.009, Local Government Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:
(a)iiTo protect the public interest or promote the efficient use of public funds, the
state auditor [governor] shall recommend to the governor drafts of [adopt]:
(1)iirules relating to the operation and oversight of a commission;
(2)iirules relating to the receipt or expenditure of funds by a commission, including:
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(A)iirestrictions on the expenditure of any portion of commission funds for certain classes of expenses; and
(B)iirestrictions on the maximum amount of or percentage of commission funds that may be expended on a class of expenses, including indirect costs or travel expenses;
(3)iiannual reporting requirements for a commission;
(4)iiannual audit requirements on funds received or expended by a commission from any source;
(5)iirules relating to the establishment and use of standards by which the productivity and performance of each commission can be evaluated; and
(6)iiguidelines that commissions and governmental units shall follow in carrying out the provisions of this chapter relating to review and comment procedures.
(a-1)iiThe governor shall review the draft rules submitted by the state auditor under Subsection (a) and shall:
(1)iiadopt the rules as drafted;
(2)iimodify the rules and adopt the modified rules; or
(3)iireject the rules and return the rules to the state auditor with instructions for redrafting and resubmitting the rules.
SECTIONi2E.03.iiSection 391.0095, Local Government Code, is amended to read as follows:
Sec.i391.0095.iiAUDIT AND REPORTING REQUIREMENTS. (a) The audit
and reporting requirements under Section 391.009(a) shall include a requirement that
a commission annually report to the state auditor [governor]:
(1)iithe amount and source of funds received by the commission;
(2)iithe amount and source of funds expended by the commission;
(3)iian explanation of any method used by the commission to compute an expense of the commission, including computation of any indirect cost of the commission;
(4)iia report of the commission's productivity and performance during the annual reporting period;
(5)iia projection of the commission's productivity and performance during the next annual reporting period;
(6)iithe results of an audit of the commission's affairs prepared by an independent certified public accountant; and
(7)iia report of any assets disposed of by the commission.
(b)iiA [The annual audit of a] commission or the governor's office may direct
that an annual audit of the commission be performed. The annual audit [be
commissioned by the governor's office or by the commission, as determined by the
governor's office, and] shall be paid for from the commission's funds.
(c)iiA commission shall submit any other report or an audit to the state auditor
and [required by] the governor.
(d)iiIf a commission fails to submit a report or audit required under this section
or is determined by the state auditor [governor] to have failed to comply with a rule,
requirement, or guideline adopted under Section 391.009, the state auditor shall report
the failure to the governor. The governor may, until the failure is corrected:
(1)iiappoint a receiver to operate or oversee the commission; or
3526 78th Legislature — Regular Session 82nd Day
(2)iiwithhold any appropriated funds of the commission.
(e)iiA commission shall send to the state auditor, the governor, the comptroller,
and the Legislative Budget Board a copy of each report and audit required under this
section or under Section 391.009. The state auditor shall review each audit and report
and must be given access to working papers and other supporting documentation that
the state auditor determines is necessary to perform the review. If the state auditor
finds significant issues involving the administration or operation of a commission or
its programs, the state auditor shall report its findings and related recommendations to
the legislative audit committee, the governor, and the commission. The [governor and
the] legislative audit committee, based on the recommendation of the state auditor,
may direct the commission to prepare a corrective action plan or other response to the
state auditor's findings or recommendations. The legislative audit committee may
direct the state auditor to perform any additional audit or investigative work that the
committee determines is necessary.
SECTIONi2E.04.iiSection 391.0117(e), Local Government Code, is amended to read as follows:
(e)iiA commission shall submit to the state auditor [governor] the commission's
salary schedule, including the salaries of all exempt positions, not later than the 45th
day before the date of the beginning of the commission's fiscal year. If the state
auditor has recommendations to improve [governor objects to] a commission's salary
schedule or a portion of the schedule, the state auditor shall report the
recommendations to the governor's office. The governor's office may not allow the
portion of the schedule for which [that] the state auditor has recommendations to
[governor objects to may not] go into effect until revisions or explanations are given
that are satisfactory to the governor based on recommendations from the state auditor
[and the governor approves that portion of the schedule].
SECTIONi2E.05.iiOn the effective date of this Act, a rule, requirement, or guideline adopted by the governor relating to the oversight of regional planning commissions remains in effect until amended or repealed by the governor.
ARTICLE 2F. ECONOMIC DEVELOPMENT POWERS
OF GOVERNOR
SECTIONi2F.01.iiSubchapter F, Chapter 401, Government Code, is amended by adding Section 401.106 to read as follows:
Sec.i401.106.iiECONOMIC DEVELOPMENT POWERS. (a) The governor may negotiate on behalf of the state in economic development pursuits, including the pursuit of the expansion or relocation of a business project with the potential to have a substantial impact on the economy of this state.
(b)iiTo promote the economic development of this state, the governor may direct a state agency to use funds appropriated to the agency or to a fund or account of the agency in a manner specified by the governor that is for a purpose for which the funds are appropriated. The agency shall comply with the governor's direction. The governor may represent to a person for purposes of negotiating under this section that the governor has the authority to obligate state funds as provided by this subsection.
(c)iiFunds that the governor may redirect under Subsection (b) include:
(1)iiamounts reserved by the governor for statewide employment and training activities under 29 U.S.C. Section 2864, as amended;
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(2)iiamounts allocated by the Texas Transportation Commission for strategic priorities;
(3)iithe skills development fund;
(4)iithe self-sufficiency fund;
(5)iidiscretionary funds of the commissioner of education or the Texas Education Agency;
(6)iithe telecommunications infrastructure fund;
(7)iifunds appropriated for the advanced research program under Chapter 142, Education Code, or the advanced technology program under Chapter 143, Education Code; and
(8)iiunclaimed lottery prize money.
(d)iiSubsections (b) and (c) do not apply in relation to a state agency that is headed by a statewide-elected official.
ARTICLE 2G. TEXAS TRANSPORTATION INSTITUTE
SECTIONi2G.01.iiChapter 88, Education Code, is amended by adding Subchapter D to read as follows:
SUBCHAPTER D. TEXAS TRANSPORTATION INSTITUTE
Sec.i88.301.iiDEFINITION. In this subchapter, "institute" means the Texas Transportation Institute, a component of The Texas A&M University System.
Sec.i88.302.iiFUNDING; LIMITATION ON GENERAL REVENUE. (a) General revenue of the state may not be appropriated or used to fund an activity or program of the institute if money from the state highway fund could lawfully be appropriated and used to fund the activity or program.
(b)iiIn any request or proposal by the board to the legislature, Legislative Budget Board, or Texas Higher Education Coordinating Board for an appropriation for the institute, the board shall include a description of each major activity or program of the center and a statement of the board's opinion whether the activity or program could be lawfully funded in whole or part by money from the state highway fund.
SECTIONi2G.02.iiSection 88.302, Education Code, as added by this article, does not affect the validity of an appropriation made to the Texas Transportation Institute before the effective date of this article or the use of the appropriated money by the institution.
ARTICLE 2H. UNCLAIMED PROPERTY
SECTIONi2H.01.iiSection 72.101(a), Property Code, is amended to read as follows:
(a)iiExcept as provided by this section and Sections [Section] 72.1015 and
72.102, personal property is presumed abandoned if, for longer than three years:
(1)iithe existence and location of the owner of the property is unknown to the holder of the property; and
(2)iiaccording to the knowledge and records of the holder of the property, a claim to the property has not been asserted or an act of ownership of the property has not been exercised.
SECTIONi2H.02.iiSubchapter B, Chapter 72, Property Code, is amended by adding Section 72.1015 to read as follows:
Sec.i72.1015.iiUNCLAIMED WAGES. (a) In this section, "wages" has the meaning assigned by Section 61.001, Labor Code.
3528 78th Legislature — Regular Session 82nd Day
(b)iiAn amount of unclaimed wages is presumed abandoned if, for longer than one year:
(1)iithe existence and location of the person to whom the wages are owed is unknown to the holder of the wages; and
(2)iiaccording to the knowledge and records of the holder of the wages, a claim to the wages has not been asserted or an act of ownership of the wages has not been exercised.
ARTICLE 2I. IMPOSITION OF CERTAIN FEES
SECTIONi2I.01.iiSubchapter B, Chapter 1052, Occupations Code, is amended by adding Section 1052.0541 to read as follows:
Sec.i1052.0541.iiFEE INCREASE. (a) The fee for the issuance of a certificate of registration under this chapter and the fee for the renewal of a certificate of registration under this chapter is increased by $200.
(b)iiOf each fee increase collected, $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund.
SECTIONi2I.02.iiSubchapter B, Chapter 1053, Occupations Code, is amended by adding Section 1053.0521 to read as follows:
Sec.i1053.0521.iiFEE INCREASE. (a) The fee for the issuance of a certificate of registration under this chapter and the fee for the renewal of a certificate of registration under this chapter is increased by $200.
(b)iiOf each fee increase collected, $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund.
SECTIONi2I.03.iiSubchapter D, Chapter 1071, Occupations Code, is amended by adding Section 1071.1521 to read as follows:
Sec.i1071.1521.iiFEE INCREASE. (a) The fee for the issuance of a certificate of registration to a registered professional land surveyor under this chapter and the fee for the renewal of a certificate of registration for a registered professional land surveyor under this chapter is increased by $200.
(b)iiOf each fee increase collected, $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund.
SECTIONi2I.04.iiSubchapter B, Chapter 1152, Occupations Code, is amended by adding Section 1152.053 to read as follows:
Sec.i1152.053.iiFEE INCREASE. (a) The fee for the registration of a person under this chapter and the fee for the renewal of a registration under this chapter is increased by $200.
(b)iiOf each fee increase collected, $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund.
SECTIONi2I.05.iiThe change in law made by this article applies only to the issuance or renewal of a certificate of registration under Chapter 1052, 1053, or 1071, Occupations Code, or the issuance or renewal of a registration under Chapter 1151, Occupations Code, on or after the effective date of this article. A certificate of registration or registration issued or renewed before the effective date of this article is governed by the law in effect on the date of the issuance or renewal, and the former law is continued in effect for that purpose.
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ARTICLE 2J. OPERATIONS OR FINANCIAL ACCOUNTABILITY OF
STATE AGENCIES
SECTIONi2J.01.iiChapter 322, Government Code, is amended by adding Section 322.015 to read as follows:
Sec.i322.015.iiDEVELOPMENT OF SYSTEM OF PERFORMANCE MEASURES. (a) The Legislative Budget Board and the governor shall develop a system of performance measures to be used by state agencies for purposes of the appropriations process.
(b)iiThe Legislative Budget Board shall keep the House Appropriations Committee and the Senate Finance Committee informed of the board's activities related to the development of the system of performance measures.
(c)iiOn request, a state agency shall provide information or assistance to the Legislative Budget Board and the governor to assist with the development of the system of performance measures.
SECTIONi2J.02.iiSection 2056.002, Government Code, is amended by adding Subsection (f) to read as follows:
(f)iiThe Legislative Budget Board and the governor shall develop recommendations for improvement of the strategic planning process under this section. On request, a state agency shall assist the Legislative Budget Board and the governor in developing recommendations for improvement in accordance with this subsection.
SECTIONi2J.03.iiSubtitle C, Title 10, Government Code, is amended by adding Chapter 2115 to read as follows:
CHAPTER 2115. RISK ASSESSMENT AND FINANCIAL
CONTROL SYSTEMS
Sec.i2115.001.iiDEFINITION. In this chapter, "state agency" means a department, commission, board, office, or other agency in the executive, legislative, or judicial branch of state government created by the constitution or a statute of this state, including an institution of higher education as defined by Section 61.003, Education Code, except a public junior college, and a health-related institution that is associated with an institution of higher education.
Sec.i2115.002.iiREPORT ON RISK ASSESSMENT AND FINANCIAL CONTROL SYSTEMS. (a) Not later than September 30 of each year, the executive director of a state agency and, for a state agency governed by a board or similar body, the presiding officer of the agency's governing body shall submit to the office of the governor, the Legislative Budget Board, and the state auditor, a letter that provides assurance about the state agency's risk assessment and financial control systems.
(b)iiIf the executive director and the presiding officer of the agency's governing body agree on the content of the letter required by this section, they shall jointly submit one letter for the state agency. If the executive director and the presiding officer do not agree on the content of the letter, they shall each submit a separate letter in accordance with this section.
(c)iiA person submitting or jointly submitting a letter in accordance with this section must sign the letter and, as appropriate, attest in the letter that:
(1)iithe person has identified and reviewed risks that may affect the state agency's operation and the achievement of its mission;
3530 78th Legislature — Regular Session 82nd Day
(2)iithe person has taken appropriate action to manage and reduce the actual and potential effects of the risks identified under Subdivision (1) on the state agency;
(3)iithe person has reviewed the state agency's financial control systems; and
(4)iito the best of the person's knowledge after reasonable efforts to obtain accurate information:
(A)iithe financial control systems identified under Subdivision (3) protect the state's resources from inappropriate use and fraud to the greatest extent possible; and
(B)iias of the date the letter is submitted, the financial statements and other financial information reported by the state agency fairly represent the financial condition and results of the agency's operations.
(d)iiIf a person is unable to attest to any of the statements under Subsection (c), the person must identify in the letter the statement and the reason or reasons why the person is unable to attest to it.
(e)iiA letter submitted under this section must identify any ongoing or future planned actions to correct problems in or strengthen the state agency's risk assessment or financial control systems and the date the actions were, or are expected to be, implemented.
(f)iiIf a state agency fails to timely submit a letter in accordance with this section, the state auditor shall report to any relevant legislative committees the fact of the state agency's failure to do so.
PART 3. MANAGEMENT OF STATE PROPERTY AND FACILITIES
ARTICLE 3A. FUEL SAVINGS FOR STATE AGENCIES
SECTIONi3A.01.iiChapter 447, Government Code, as amended by Chapters 573, 1158, and 1398, Acts of the 77th Legislature, Regular Session, 2001, is amended by adding Sections 447.012 and 447.013 to read as follows:
Sec.i447.012.iiFUEL SAVINGS FOR STATE AGENCIES. (a) In this section and in Section 447.013:
(1)ii"Cost-effective" means resulting in fuel consumption reduction with a projected savings in fuel cost over a one-year period that exceeds the cost of purchasing and using a technology.
(2)ii"Fuel-saving technology" means a:
(A)iidevice containing no lead metal that is installed on a motor vehicle or non-road diesel and that has been proven to reduce fuel consumption per mile or per hour of operation by at least five percent;
(B)iifuel additive registered in accordance with 40 C.F.R. Part 79 that contains no known mutagenic materials and that has been proven to reduce fuel consumption per mile or per hour of operation by at least five percent; or
(C)iifuel registered in accordance with 40 C.F.R. Part 79 that contains no known mutagenic materials and that has been proven to reduce fuel consumption per mile or per hour of operation by at least five percent.
(3)ii"Motor vehicle" and "non-road diesel" have the meanings assigned by Section 386.101, Health and Safety Code.
(4)ii"Proven fuel-saving technologies" means technologies shown to reduce fuel use by at least five percent in:
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(A)iian Environmental Protection Agency fuel economy federal test protocol test performed at a laboratory recognized by the Environmental Protection Agency;
(B)iia fuel economy test performed in accordance with protocols and at testing laboratories or facilities recognized by the state energy conservation office, the Texas Commission on Environmental Quality, or the Environmental Protection Agency; or
(C)iia field demonstration performed in accordance with Section 447.013.
(b)iiA state agency with 10 or more motor vehicles or non-road diesels shall reduce the total fuel consumption of the vehicles or diesels by at least five percent from fiscal year 2002 consumption levels through the use of cost-effective fuel-saving technologies.
(c)iiA state agency may delay reducing fuel use as described in this section until a list of proven fuel-saving technologies is provided by the state energy conservation office as provided by Section 447.013.
(d)iiA state agency may not purchase or use as a fuel-saving technology a technology that:
(1)iiis known to increase oxides of nitrogen emissions or toxic air contaminants; or
(2)iimay be reasonably concluded to degrade air quality or human health or to negatively impact the environment.
(e)iiA state agency may purchase cost-effective fuel-saving technologies out of the agency's fuel budget.
(f)iiA state agency shall competitively evaluate similar fuel-saving technologies.
(g)iiA state agency may require a seller of a fuel-saving technology to refund the cost of the technology if it is determined to be ineffective at reducing fuel use by at least five percent before the 91st day after the date the technology is first used by the agency.
(h)iiA state agency may use fuel-saving technologies that the agency determines are cost-effective and may use a fuel-saving technology in applications that provide other benefits, including emissions reductions.
(i)iiA state agency may establish a program for agency employees to voluntarily:
(1)iipurchase fuel-saving technologies; and
(2)iidocument reductions in fuel savings and air emissions.
(j)iiA state agency shall annually report to the state energy conservation office on a form provided by the office on the state agency's efforts and progress under this section.
Sec.i447.013.iiFIELD DEMONSTRATIONS. (a) Under the direction of the state energy conservation office, the Texas Department of Transportation shall demonstrate the effectiveness of at least four fuel-saving technologies on a combined maximum of 100 motor vehicles or non-road diesels in accordance with this section to determine the fuel-saving technologies that may cost-effectively reduce fuel consumption and save state revenue.
3532 78th Legislature — Regular Session 82nd Day
(b)iiVarying ages and types of motor vehicles and non-road diesels shall be selected to demonstrate the fuel-saving technologies. Preference shall be given to high-use motor vehicles and non-road diesels in the selection.
(c)iiThe Texas Department of Transportation shall demonstrate the performance of fuel-saving technologies by:
(1)iiassessing a technology's performance in the normal course of operations of motor vehicles or non-road diesels; and
(2)iiperforming controlled field tests.
(d)iiIn selecting the technologies to be evaluated, the state energy conservation office shall:
(1)iiconsult with governmental and business organizations that are currently using fuel-saving technology;
(2)iiconsider technologies that are proven fuel-saving technologies that have demonstrated fuel economy benefits of five percent or more in field tests or recorded use data of government organizations or businesses that operate fleets; and
(3)iidetermine whether each technology selected has the potential to be cost-effective.
(e)iiA fuel-saving technology may be disqualified from being demonstrated or used if it is known to reduce engine performance, reduce the life of the engine, require additional maintenance expenses, or degrade air quality.
(f)iiThe Texas Council on Environmental Technology, The University of Texas Center for Transportation Research, the University of Houston Diesel Emissions Center, or another agency may be designated to assist with executing the demonstration, compiling the results, estimating the potential average fuel savings of the technologies in different applications, or preparing a final report.
(g)iiOn completing the demonstration described by this section the state energy conservation office shall rank the fuel-saving technologies based on their fuel savings, other cost savings, and overall cost-effectiveness. The office shall:
(1)iilist recommended applications of the technologies;
(2)iidocument other negative or positive effects; and
(3)iiprepare a concise report of these findings.
(h)iiThe Texas Council on Environmental Technology shall obtain information on any fuel-saving technology that appears to reduce particulate matter, oxides of nitrogen, carbon monoxide, or hydrocarbon emissions. The Texas Council on Environmental Technology may use this information to fund the Environmental Protection Agency verification of a technology in accordance with Section 387.003, Health and Safety Code.
(i)iiThe state energy conservation office shall provide the report prepared under Subsection (g) to each state agency with 10 or more motor vehicles or non-road diesels and to the Legislative Budget Board.
(j)iiThe demonstration and associated reports described by this section shall be completed not later than September 1, 2004.
(k)iiAll results of a demonstration project under this section shall be made public on the state energy conservation office's Internet website.
(l)iiThe state energy conservation office shall provide quarterly an updated list of all proven fuel-saving technologies on its Internet website.
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(m)iiMoney from the state highway fund may not be used for the purchase, installation, maintenance, or operation of the fuel-saving technologies being assessed or subjected to controlled field tests under this section. Repairs to state equipment resulting from demonstrations of fuel-saving technologies must be paid from the same funds used to implement this section.
ARTICLE 3B. FACILITIES MANAGEMENT SERVICES
SECTIONi3B.01.iiSubchapter A, Chapter 2165, Government Code, is amended by adding Section 2165.007 to read as follows:
Sec.i2165.007.iiFACILITIES MANAGEMENT SERVICES. (a) In this section, "facilities management services" means any state agency facilities management service that is not unique to carrying out a program of the agency. The term includes services related to facilities construction, facilities management, general building and grounds maintenance, cabling, and facility reconfiguration.
(b)iiNotwithstanding any other law, the commission shall provide facilities management services in relation to all state agency facilities in Travis County or a county adjacent to Travis County. The commission's duty does not apply to:
(1)iia facility owned or operated by an institution of higher education;
(2)iimilitary facilities;
(3)iiprison facilities;
(4)iithe Capitol, including the Capitol Extension, the General Land Office building, and any museum located on the Capitol grounds; or
(5)iia facility determined by the commission to be completely residential.
SECTIONi3B.02.iiSubchapter B, Chapter 2165, Government Code, is amended by adding Section 2165.057 to read as follows:
Sec.i2165.057.iiMANAGEMENT OF FACILITIES. (a) The commission shall develop and implement policies that clearly define the responsibilities of the commission and the commission's staff that relate to conducting facilities management services for state agency facilities under Section 2165.007.
(b)iiThe state energy conservation office shall provide utility management services for state agency facilities for which the commission provides facilities management services under Section 2165.007.
SECTIONi3B.03.iiOn September 1, 2003:
(1)iiall powers and duties of a state agency that relate to the facilities management services treated by Section 2165.007(b), Government Code, as added by this Act, are transferred to the Texas Building and Procurement Commission or the state energy conservation office, as appropriate;
(2)iiall obligations and contracts of a state agency that relate to the transferred services are transferred to the Texas Building and Procurement Commission or the state energy conservation office, as appropriate;
(3)iiall records and other property in the custody of a state agency that relate to the transferred services and all funds appropriated by the legislature to a state agency that relate to the transferred services are transferred to the Texas Building and Procurement Commission or the state energy conservation office, as appropriate;
3534 78th Legislature — Regular Session 82nd Day
(4)iiall complaints and investigations that are pending before a state agency that relate to the transferred services are transferred without change in status to the Texas Building and Procurement Commission or the state energy conservation office, as appropriate; and
(5)iia rule or form adopted by a state agency that relates to the transferred services is considered to be a rule or form of the Texas Building and Procurement Commission and remains in effect until altered by the commission or the state energy conservation office, as appropriate.
ARTICLE 3C. RECYCLING MARKET DEVELOPMENT
SECTIONi3C.01.iiSection 2155.448(a), Government Code, is amended to read as follows:
(a)iiEach state fiscal year, the commission[, in coordination with the Recycling
Market Development Board,] by rule may identify recycled, remanufactured, or
environmentally sensitive commodities or services, as those terms are defined by rule
of the commission, and designate purchasing goals for the procurement of those
commodities and services by state agencies for that fiscal year.
SECTIONi3C.02.iiSection 361.423, Health and Safety Code, is amended to read as follows:
Sec.i361.423.iiRECYCLING MARKET DEVELOPMENT [BOARD AND]
IMPLEMENTATION PROGRAM. (a) The governor's office, the commission, the
Texas Department of Economic Development, and the Texas Building and
Procurement Commission [The commissioner of the General Land Office, the
chairman of the commission, the executive director of the General Services
Commission, and the executive director of the Texas Department of Commerce shall
constitute the Recycling Market Development Board. The commissioner of the
General Land Office serves as presiding officer of the Recycling Market Development
Board for the first year, and after that year the members of the Recycling Market
Development Board shall, in the order listed in this subsection, rotate as the presiding
officer for terms of one year. The Recycling Market Development Board may
designate chief executives of additional agencies as members of the board if it
identifies the agencies as agencies needed to assist the board in performing its duties
as outlined in Subsection (b). The Recycling Market Development Board] shall
[provide support to and] coordinate their [the] recycling activities [of member
agencies] and shall each pursue an economic development strategy that focuses on the
state's waste management priorities established by Section 361.022 and that includes
development of recycling industries and markets as an integrated component.
(b)iiThe governor's office, the commission, the Texas Department of Economic
Development, and the Texas Building and Procurement Commission [Recycling
Market Development Board], on an ongoing basis, shall jointly:
(1)iiidentify existing economic and regulatory incentives and disincentives for creating an optimal market development strategy;
(2)iianalyze the market development implications of:
(A)iithe state's waste management policies and regulations;
(B)iiexisting and potential markets for plastic, glass, paper, lead-acid batteries, tires, compost, scrap gypsum, coal combustion by-products, and other recyclable materials; and
Friday, May 30, 2003 SENATE JOURNAL 3535
(C)iithe state's tax structure and overall economic base;
(3)iiexamine and make policy recommendations regarding the need for changes in or the development of:
(A)iieconomic policies that affect transportation, such as those embodied in freight rate schedules;
(B)iitax incentives and disincentives;
(C)iithe availability of financial capital including grants, loans, and venture capital;
(D)iienterprise zones;
(E)iimanagerial and technical assistance;
(F)iijob-training programs;
(G)iistrategies for matching market supply and market demand for recyclable materials, including intrastate and interstate coordination;
(H)iithe state recycling goal;
(I)iipublic-private partnerships;
(J)iiresearch and development;
(K)iigovernment procurement policies;
(L)iieducational programs for the public, corporate and regulated communities, and government entities; and
(M)iipublic health and safety regulatory policies;
(4)iiestablish a comprehensive statewide strategy to expand markets for recycled products in Texas;
(5)iiprovide information and technical assistance to small and disadvantaged businesses, business development centers, chambers of commerce, educational institutions, and nonprofit associations on market opportunities in the area of recycling; and
(6)iiwith the cooperation of the Office of State-Federal Relations, assist communities and private entities in identifying state and federal grants pertaining to recycling and solid waste management.
(c)iiIn carrying out this section, the governor's office, the commission, the Texas
Department of Economic Development, and the Texas Building and Procurement
Commission [responsible agencies] may obtain research and development and
technical assistance from the Hazardous Waste Research Center at Lamar University
at Beaumont or other similar institutions.
(d)iiThe General Land Office shall provide ongoing research and assistance to
the governor's office, the commission, the Texas Department of Economic
Development, and the Texas Building and Procurement Commission [Recycling
Market Development Board] in carrying out their [its] responsibilities.
SECTIONi3C.03.ii(a) The Recycling Market Development Board is abolished, and the offices of the members of the board and the positions of the employees of the board are abolished.
(b)iiThe validity of an action taken by the Recycling Market Development Board before it is abolished under Subsection (a) of this section is not affected by the abolishment.
3536 78th Legislature — Regular Session 82nd Day
(c)iiOn the effective date of this article, all functions and activities performed by the Recycling Market Development Board immediately before that date are transferred to the governor's office, the Texas Commission on Environmental Quality, the Texas Department of Economic Development, and the Texas Building and Procurement Commission, as provided by this article.
ARTICLE 3D. LEASE OF SPACE IN STATE-OWNED
PARKING LOTS AND GARAGES
SECTIONi3D.01.iiSubchapter E, Chapter 2165, Government Code, is amended by adding Section 2165.2035 to read as follows:
Sec.i2165.2035.iiLEASE OF SPACE IN STATE-OWNED PARKING LOTS AND GARAGES. (a) In this section, "lease" includes a management agreement.
(b)iiThe commission shall develop private, commercial uses for state-owned parking lots and garages located in the city of Austin at locations the commission determines are appropriate for commercial uses.
(c)iiThe commission may contract with a private vendor to manage the commercial use of state-owned parking lots and garages.
(d)iiMoney received from a lease under this program shall be deposited to the credit of the general revenue fund.
(e)iiOn or before December 1 of each even-numbered year, the commission shall submit a report to the legislature and the Legislative Budget Board describing the effectiveness of the program under this section.
(f)iiThe limitation on the amount of space allocated to private tenants prescribed by Section 2165.205(b) does not apply to the lease of a state-owned parking lot or garage under this section.
(g)iiAny lease of a state-owned parking lot or garage under this section must contain a provision that allows state employees who work hours other than regular working hours under Section 658.005 to retain their parking privileges in a state-owned parking lot or garage.
ARTICLE 3E. LEASE OF SPACE FOR STATE AGENCIES
SECTIONi3E.01.iiSection 2167.001, Government Code, is amended to read as follows:
Sec.i2167.001.iiAPPLICABILITY. (a) This chapter applies to:
(1)iioffice space;
(2)iiwarehouse space;
(3)iilaboratory space;
(4)iistorage space exceeding 1,000 gross square feet; [and]
(5)iiboat storage space;
(6)iiaircraft hangar space;
(7)iivehicle parking space; and
(8)iia combination of those kinds of space.
(b)iiThis chapter does not apply to:
(1)ii[aircraft hangar space;
[(2)]iiradio antenna space;
(2)i[(3)iiboat storage space;
[(4)iivehicle parking space;
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[(5)]iiresidential space for a Texas Department of Mental Health and Mental
Retardation program;
(3)i[(6)]iiresidential space for a Texas Youth Commission program;
(4)i[(7)]iispace to be used for less than one month for meetings, conferences,
conventions, seminars, displays, examinations, auctions, or similar purposes;
(5)i[(8)]iidistrict office space for members of the legislature;
(6)i[(9)]iispace used by the Texas Workforce [Employment] Commission;
(7)i[(10)]iiresidential property acquired by the Texas Department of Housing
and Community Affairs or the Texas State Affordable Housing Corporation that is
offered for sale or rental to individuals and families of low or very low income or
families of moderate income; or
(8)i[(11)]iiexcept as provided by Section 2167.007, classroom and
instructional space for an institution of higher education.
SECTIONi3E.02.iiSection 2167.005, Government Code, is amended by adding Subsection (d) to read as follows:
(d)iiThe commission may revoke a delegation of authority made under this section.
SECTIONi3E.03.iiSection 2167.007(c), Government Code, is amended to read as follows:
(c)iiThe commission may [shall] establish a system of charges and billings to
assure the recovery of the cost of providing services under Subsection (a) and may
[shall] submit, after the close of each month, a purchase voucher or journal voucher to
an agency for which services were provided.
SECTIONi3E.04.iiSection 2167.054(d), Government Code, is amended to read as follows:
(d)iiAs provided in a request for proposals and under rules adopted by the
commission, the commission may discuss acceptable or potentially acceptable
proposals with offerors to assess an offeror's ability to meet the solicitation
requirements and to obtain the most advantageous lease contract for the state. The
commission may [shall] invite a leasing state agency to participate in discussions and
negotiations conducted under this section. After receiving a proposal but before
making an award, the commission may permit the offeror to revise the proposal to
obtain the best final proposal.
SECTIONi3E.05.iiSections 2167.055(d) and (f), Government Code, are amended to read as follows:
(d)iiA lease contract that does not contain an option to renew may, on agreement
of the parties, be renewed under terms to which all parties to the contract agree [once
under the provisions of the original contract for a term that does not exceed one year].
(f)iiThe obligation of the lessor to provide lease space and of the commission to
accept the space is binding on the execution of the lease [award of the] contract.
SECTIONi3E.06.iiSection 2167.101, Government Code, is amended to read as follows:
Sec.i2167.101.iiCERTIFICATION OF AVAILABLE MONEY. A state agency occupying space leased under this chapter shall certify to the commission, at least 60 days before the beginning of each fiscal biennium during the lease term, that money is available to pay for the lease until the end of the next fiscal biennium.
3538 78th Legislature — Regular Session 82nd Day
SECTIONi3E.07.iiThe following laws are repealed:
(1)iiSection 2167.003(c), Government Code;
(2)iiSection 2167.004(b), Government Code; and
(3)iiSection 2167.106, Government Code.
SECTIONi3E.08.iiA lease contract entered into by the Texas Building and Procurement Commission before September 1, 2003, under Chapter 2167, Government Code, is governed during the remaining term of the lease by Chapter 2167, Government Code, as it existed immediately before September 1, 2003, and the prior law is continued in effect for this purpose. Chapter 2167, Government Code, as amended by this article, applies to the renewal of a lease described by this section.
ARTICLE 3F. SALE OF BULL CREEK CAMPUS
SECTIONi3F.01.ii(a) The Texas Transportation Commission may sell the tract of land comprising the Texas Department of Transportation's Bull Creek campus at Bull Creek Road and 45th Street in Austin in accordance with the procedures for disposal of surplus land acquired for highway purposes under Subchapter B, Chapter 202, Transportation Code.
(b)iiThe commission may retain ownership and control of:
(1)iithe portion of the Bull Creek campus used on the effective date of this Act for the operations of the department's motor carrier division; and
(2)iithe parking facilities on Bull Creek Road used to serve the Bull Creek campus and the department's Camp Hubbard campus.
(c)iiRevenue from the sale of this property shall be deposited to the credit of the state highway fund.
(d)iiBefore September 1, 2005, the commission may purchase or acquire by exercise of the power of eminent domain any portion of the property formerly owned by the State Aircraft Pooling Board located at the site of the former Robert Mueller Municipal Airport in Austin that the commission determines is needed:
(1)iias a replacement for property sold under Subsection (a) of this section;
(2)iifor the operation of an intelligent transportation system; and
(3)iito locate other department facilities or offices.
(e)iiThe department may relocate its displaced operations from the Bull Creek campus to the replacement property. If the property formerly owned by the State Aircraft Pooling Board is not sufficient for the department's needs to relocate displaced operations and for other facilities or offices, the commission may also purchase or acquire by exercise of the power of eminent domain any property adjacent to that property that the commission determines necessary.
(f)iiThis section does not require the commission to relocate all or a portion of the department's displaced operations from the Bull Creek campus to property acquired under this section.
(g)iiSection 31.158, Natural Resources Code, does not apply to a transaction authorized by this section.
ARTICLE 3G. ALLOCATION OF OFFICE SPACE TO STATE AGENCIES
SECTIONi3G.01.iiSection 2165.104(c), Government Code, is amended to read as follows:
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(c)iiTo the extent possible without sacrificing critical public or client services, the
commission may not allocate usable office space, as defined by the commission, to a
state agency under Article I, II, V, VI, VII, or VIII of the General Appropriations Act
or to the Texas Higher Education Coordinating Board, the Texas Education Agency,
the State Board for Educator Certification, the Telecommunications Infrastructure
Fund Board, or the Office of Court Administration of the Texas Judicial System in an
amount that exceeds an average of 135 [153] square feet per agency employee for
each agency site. To the extent that any of those agencies allocates its own usable
office space, as defined by the commission, the agency shall allocate the space to
achieve the required ratio. This subsection does not apply to:
(1)iian agency site at which there are so few employees that it is not practical
to apply this subsection to that site, as determined by the commission [fewer than 16
employees are located]; and
(2)iian agency site at which it is not practical to apply this subsection
because of the site's type of space or use of space, as determined by the commission
[warehouse space;
[(3)iilaboratory space;
[(4)iistorage space exceeding 1,000 gross square feet;
[(5)iilibrary space;
[(6)iispace for hearing rooms used to conduct hearings required under the
administrative procedure law, Chapter 2001; or
[(7)iianother type of space specified by commission rule, if the commission
determines that it is not practical to apply this subsection to that space].
SECTIONi3G.02.iiThis article applies only to a lease for usable office space entered into or renewed on or after September 1, 2003. A lease entered into or renewed before September 1, 2003, shall be reviewed by the Texas Building and Procurement Commission as the lease comes up for renewal to determine whether it would be cost-effective to bring the lease into compliance with Section 2165.104(c), Government Code, as amended by this article.
ARTICLE 3H. WRITTEN COMMENTS BY THE GENERAL LAND OFFICE
ON TEXAS BUILDING AND PROCUREMENT COMMISSION LEASES
SECTIONi3H.01.iiThe following sections are repealed:
(1)iiSection 2165.154, Government Code; and
(2)iiSection 2165.204, Government Code.
ARTICLE 3I. DEFINITION OF RECYCLED PRODUCT
SECTIONi3I.01.iiSection 2155.445, Government Code, is amended by adding Subsection (d) to read as follows:
(d)iiIn addition to the products covered by the definition adopted by rule under this section, in this section "recycled product" includes recycled steel products. The preference for recycled steel products under this section applies also to products purchased in connection with projects described by Section 2166.003.
PART 4. MANAGEMENT OF INFORMATION TECHNOLOGY
ARTICLE 4A. OPERATING PLANS OF STATE AGENCIES
SECTIONi4A.01.iiSection 2054.102, Government Code, is amended to read as follows:
3540 78th Legislature — Regular Session 82nd Day
Sec.i2054.102.iiEVALUATION AND APPROVAL OF OPERATING PLANS. (a) The Legislative Budget Board may specify procedures for the submission, review, approval, and disapproval of biennial operating plans and amendments, including procedures for review or reconsideration of the Legislative Budget Board's disapproval of a biennial operating plan or biennial operating plan amendment. The Legislative Budget Board shall review and approve or disapprove the biennial operating plan or biennial operating plan amendment not later than the 60th day after the date the plan or amendment to the plan is submitted. The plan or amendment to the plan is considered to be approved on the 61st day after the date the plan or amendment is submitted if the Legislative Budget Board does not disapprove the plan or amendment before that date.
(b)iiThe governing board of the department shall adopt rules as necessary to establish department standards.
(c)iiThe department shall provide the Legislative Budget Board with a list of agencies that have not complied with department standards, provisions of the state strategic plan, or corrective action plans. An agency identified on a list under this subsection shall develop a corrective action plan approved by the department that specifies the manner in which deficiencies will be corrected before components of or amendments to the agency's biennial operating plan may be approved by the Legislative Budget Board.
ARTICLE 4B. TEXASONLINE AUTHORITY
SECTIONi4B.01.iiSection 2054.111(e), Government Code, is amended to read as follows:
(e)iiA state agency or local government that uses the project may charge a fee if:
(1)iithe fee is necessary to recover the actual costs directly and reasonably incurred by the agency or local government because of the project for:
(A)iithe use of electronic payment methods; or
(B)iiinterfacing with other information technology systems;
(2)iithe fee does not include an amount to recover state agency or local government employee costs;
(3)iithe state agency or local government approves the amount of the fee using the state agency's or local government's standard approval process for fee increases;
(4)iithe chief financial officer for the state agency or local government certifies that the amount of the fee is necessary to recover the actual costs incurred because of the project; and
(5)i[(2)]iithe authority approves the amount of the fee.
SECTIONi4B.02.iiSubchapter F, Chapter 2054, Government Code, is amended by adding Section 2054.1115 to read as follows:
Sec.i2054.1115.iiELECTRONIC PAYMENTS ON TEXASONLINE. (a) A state agency or local government that uses TexasOnline may use electronic payment methods, including the acceptance of credit and debit cards, for points of sale, telephone, or mail transactions.
(b)iiThe state agency or local government may charge a reasonable fee, as provided by Section 2054.111, to recover costs incurred through electronic payment methods used under this section.
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SECTIONi4B.03.iiSection 2054.113, Government Code, is amended by adding Subsections (c) and (d) to read as follows:
(c)iiA state agency may not contract with a third party to develop an Internet application that duplicates a TexasOnline function unless the agency has notified and provided the authority the opportunity to bid on the contract at the same time as third parties are provided the opportunity to bid.
(d)iiThe program management office may exempt a state agency from this section if the office determines that the agency has fully complied with Section 2054.111.
SECTIONi4B.04.iiSection 2054.125, Government Code, is amended by adding Subsection (d) to read as follows:
(d)iiEach state agency that maintains a generally accessible Internet site shall include a link to TexasOnline on the front page of the Internet site.
SECTIONi4B.05.iiSection 2054.251(5), Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
(5)ii"Occupational license" means a license, certificate, registration, permit, or other form of authorization, including a renewal of the authorization, that:
(A)iia person must obtain to practice or engage in a particular business, occupation, or profession; or
(B)iia facility must obtain before a particular business, occupation, or profession is practiced or engaged in within the facility.
SECTIONi4B.06.iiSection 2054.251, Government Code, as added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i2054.251.iiDEFINITIONS. In this subchapter, "authority," "licensing
entity," and "occupational [:
[(1)ii"Licensing authority" means a department, commission, board, office,
or other agency of the state or a political subdivision of the state that issues an
occupational license.
[(2)ii"Occupational] license" have the meanings assigned those terms by
Section 2054.251, as added by Chapter 342, Acts of the 77th Legislature, Regular
Session, 2001 [means a license, certificate, registration, or other form of authorization
that a person must obtain to practice or engage in a particular business, occupation, or
profession].
SECTIONi4B.07.iiSection 2054.252(d), Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
(d)iiThe department [authority] may contract with a private vendor to implement
this section.
SECTIONi4B.08.iiSection 2054.252, Government Code, as added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i2054.252.iiAPPLICABILITY. (a) The following licensing entities
[authorities] shall participate in the system established under Section 2054.253, as
added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001:
3542 78th Legislature — Regular Session 82nd Day
(1)iiState Board of Barber Examiners;
(2)iiTexas Board of Chiropractic Examiners;
(3)iiTexas Cosmetology Commission;
(4)iiCourt Reporters Certification Board;
(5)iiState Board of Dental Examiners;
(6)iiTexas Funeral Service Commission;
(7)iiTexas Board of Professional Land Surveying;
(8)iiTexas State Board of Medical Examiners;
(9)iiBoard of Nurse Examiners;
(10)iiBoard of Vocational Nurse Examiners;
(11)iiTexas Optometry Board;
(12)iiTexas Structural Pest Control Board;
(13)iiTexas State Board of Pharmacy;
(14)iiExecutive Council of Physical Therapy and Occupational Therapy Examiners;
(15)iiTexas State Board of Plumbing Examiners;
(16)iiTexas State Board of Podiatric Medical Examiners;
(17)iiBoard of Tax Professional Examiners;
(18)iiPolygraph Examiners Board;
(19)iiTexas State Board of Examiners of Psychologists;
(20)iiState Board of Veterinary Medical Examiners;
(21)iiTexas Real Estate Commission;
(22)iiTexas Appraiser Licensing and Certification Board; [and]
(23)iiTexas Department of Licensing and Regulation;
(24)iiTexas State Board of Public Accountancy;
(25)iiState Board for Educator Certification;
(26)iiTexas Board of Professional Engineers;
(27)iiTexas Department of Health;
(28)iiTexas Board of Architectural Examiners;
(29)iiTexas Racing Commission;
(30)iiCommission on Law Enforcement Officer Standards and Education; and
(31)iiTexas Commission on Private Security.
(b)iiThe authority [comptroller] may add additional agencies as system
capabilities are developed.
(c)iiA licensing entity [authority] other than an entity [authority] listed by
Subsection (a) may participate in the system established under Section 2054.253, as
added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001, subject to
the approval of the authority [department].
SECTIONi4B.09.iiSection 2054.253(a), Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
(a)iiThe authority consists of the comptroller, who serves ex officio, or the
designee of the comptroller, a member of the board of the department who serves ex
officio at the pleasure of the governor, and 15 members appointed[,] as follows:
Friday, May 30, 2003 SENATE JOURNAL 3543
(1)ii[a representative of each of the following state officers or agencies
appointed by the state officer or the governing body of the agency:
[(A)iithe comptroller; and
[(B)iithe department;
[(2)]iithree representatives of local governments appointed by the governor,
including one representative from a junior college district;
(2)i[(3)]iithree representatives of businesses that are regulated by a state
agency or local government, appointed by the governor, including one representative
from a rural area;
(3)i[(4)]iifour representatives of state agencies, including an institution of
higher education other than a junior college district, appointed by the governor,
including one representative from a rural area; and
(4)iifive [(5)iithree] public members appointed by the governor, including
one representative from a rural area.
SECTIONi4B.10.iiSection 2054.253, Government Code, as added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i2054.253.iiELECTRONIC SYSTEM FOR OCCUPATIONAL LICENSING
TRANSACTIONS. (a) The authority [department] shall administer a common
electronic system using the Internet through which a licensing entity [authority] can
electronically:
(1)iisend occupational licenses and other documents to persons regulated by the authority and to the public;
(2)iireceive applications for occupational licenses and other documents for filing from persons regulated by the authority and from the public, including documents that can be electronically signed if necessary; and
(3)iireceive required payments from persons regulated by the authority and from the public.
(b)iiThe authority [department] may implement this section in phases. Each
licensing entity [authority] that participates in the system established under this
section shall comply with the schedule established by the authority [department].
(c)iiThe authority [department] may use any Internet portal established under a
demonstration project administered by the authority [department].
(d)ii[The department may contract with a private vendor to implement this
section. A contract under this subsection is payable only from fees collected under
Subsection (e).
[(e)]iiThe authority [department] shall charge fees to licensing entities in
amounts sufficient to cover the cost of implementing this section. The authority shall
[department may] charge[:
[(1)iia transaction fee for each transaction performed on the system; and
[(2)]iia subscription fee to be paid by each licensing entity [authority that
participates in the system].
(e)iiEach licensing entity shall increase the occupational license issuance or renewal fees imposed by the licensing entity by an amount sufficient to cover the cost of the subscription fee imposed on the licensing entity under Subsection (d) but not to exceed:
3544 78th Legislature — Regular Session 82nd Day
(1)ii$5 per year for an occupational license;
(2)ii$10 for a biennial occupational license; or
(3)iithe amount necessary to recover the cost of the subscription fee imposed on the licensing entity under Subsection (d) for an occupational license that is a permit or that is issued for a facility.
(f)iiThe authority may charge a reasonable convenience fee to a license holder who who uses the system for on-line issuance or renewal of a license if the authority determines that the transaction costs exceed the maximum increase in occupational license issuance or renewal fees allowed under Subsection (e).
(g)iiThe authority may exempt a licensing entity from the requirements of this section if the authority determines that:
(1)iithe licensing entity has established an Internet portal that is performing the functions described by Subsection (a); or
(2)iion-line license renewal for the licensing entity would not be cost-effective or in the best interest of the project.
SECTIONi4B.11.iiSections 2054.254(a), (b), and (c), Government Code, as added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001, are amended to read as follows:
(a)iiThe steering committee for electronic occupational licensing transactions consists of a representative of each of the following, appointed by its governing body:
(1)iieach licensing entity [authority] listed by Section 2054.252(a), as added
by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001; and
(2)iithe department.
(b)iiThe governing body of a licensing entity [authority] described by Section
2054.252(c), as added by Chapter 353, Acts of the 77th Legislature, Regular Session,
2001, may appoint a representative to the committee.
(c)iiA member of the committee serves at the will of the entity [authority] that
appointed the member.
SECTIONi4B.12.iiSection 2054.255, Government Code, is amended to read as follows:
Sec.i2054.255.iiPRESIDING OFFICER. The governor shall designate one
member of the authority as [representing the department is] the presiding officer of the
authority to serve in that capacity at the pleasure of the governor.
SECTIONi4B.13.iiSection 2054.259, Government Code, is amended to read as follows:
Sec.i2054.259.iiGENERAL POWERS AND DUTIES OF TEXASONLINE AUTHORITY. The authority shall:
(1)iidevelop policies related to operation of the project;
(2)iiapprove or disapprove [consider] services to be provided by the project;
(3)iioperate and promote the project;
(4)iioversee [manage] contract performance for the project;
(5)iicomply with department financial requirements;
(6)iioversee money generated for the operation and expansion of the project;
(7)iidevelop project pricing policies, including policies regarding any fees that a state agency or local government may charge for a transaction that uses the project;
Friday, May 30, 2003 SENATE JOURNAL 3545
(8)iievaluate participation in the project to determine if performance efficiencies or other benefits and opportunities are gained through project implementation;
(9)iiadvise the department about the project; and
(10)iicoordinate with the department to receive periodic security audits of the operational facilities of the project.
SECTIONi4B.14.iiSubchapter I, Chapter 2054, Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001, is amended by adding Sections 2054.268, 2054.269, 2054.270, and 2054.271 to read as follows:
Sec.i2054.268.iiCONTRACTS; CONFLICT OF INTEREST. A contract entered into between the authority and another state agency or a local government is not void for the sole reason that a member of the authority also serves on the governing body of the state agency or local government with whom the contract was entered.
Sec.i2054.269.iiINTELLECTUAL PROPERTY RIGHTS. The department may exercise all intellectual property rights regarding the project, including prevention of other persons from using names or designs similar to those used by the project to market products.
Sec.i2054.270.iiMOTOR VEHICLE REGISTRATIONS. For purposes of this chapter, the renewal of a motor vehicle registration is a state service.
Sec.i2054.271.iiAUTHENTICATION OF INDIVIDUAL IDENTITIES AND SIGNATURES; RULES. (a) The authority or another state agency or local government that uses TexasOnline may use the Department of Public Safety's or another state agency's database, as appropriate, to authenticate an individual's identity on TexasOnline.
(b)iiThe authentication allowed by this section may be used by the state agency or local government as an alternative to requiring a notarized document, a document signed by a third party, or an original signature on a document.
(c)iiThe authority shall propose rules, which the board may adopt, regarding the use of a standardized database for authentication under this section.
SECTIONi4B.15.iiSections 2054.252(e), (f), and (g), Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001, and Section 2054.2645, Government Code, are repealed.
SECTIONi4B.16.ii(a) Not later than November 1, 2003, the governor shall appoint the additional public members to serve on the TexasOnline Authority, as required by Section 2054.253(a), Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001, and as amended by this Act. One public member's term shall expire on February 1, 2005, and the other public member's term shall expire on February 1, 2007.
(b)iiNot later than November 1, 2003, the governor shall appoint a member of the governing board of the Department of Information Resources to serve on the TexasOnline Authority, as required by Section 2054.253(a), Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001, and as amended by this Act.
SECTIONi4B.17.iiThe Department of Information Resources shall, in cooperation with the secretary of state, study the feasibility of providing notary public services on the Internet. If the department and the secretary of state determine the
3546 78th Legislature — Regular Session 82nd Day
SECTIONi4B.18.iiThis article 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 article takes effect September 1, 2003.
ARTICLE 4C. ON-LINE STATE BENEFITS SYSTEM
SECTIONi4C.01.iiSubchapter F, Chapter 2054, Government Code, is amended by adding Section 2054.131 to read as follows:
Sec.i2054.131.iiELECTRONIC BENEFITS ENROLLMENT AND ADMINISTRATION SYSTEM. (a) In this section, "work site benefits plan" means a plan or other arrangement to provide to officers, employees, or former officers or employees:
(1)iiinsurance, including health, life, and disability insurance and health benefits plans;
(2)iiflexible spending accounts; or
(3)iisavings or retirement benefits.
(b)iiIf the comptroller determines that a cost savings may be realized, the comptroller, through a private vendor selected under this section, may implement a project that establishes a common electronic infrastructure through which each state agency, including any retirement system created by statute or by the constitution, shall:
(1)iirequire its work site benefits plan participants to electronically:
(A)iienroll in any work site benefits plans provided to the person by the state or a state agency;
(B)iiadd, change, or delete benefits;
(C)iisign any payroll deduction agreements to implement a contribution made to a plan in which the participant enrolls;
(D)iiterminate participation in a voluntary plan;
(E)iiinitiate account investment changes and withdrawals in a retirement plan;
(F)iiobtain information regarding plan benefits; and
(G)iicommunicate with the plan administrator; and
(2)iiadminister its work site benefits plans electronically by using the project to:
(A)iienroll new plan participants and, when appropriate, terminate plan participation;
(B)iigenerate eligibility and enrollment reports for plan participants;
(C)iilink plan administration with payroll administration to facilitate payroll deductions for a plan;
(D)iifacilitate single-source billing arrangements between the agency and a plan provider; and
(E)iitransmit and receive information regarding the plan.
(c)iiThe electronic infrastructure established under Subsection (a) may include TexasOnline, the Internet, intranets, extranets, and wide area networks.
Friday, May 30, 2003 SENATE JOURNAL 3547
(d)iiIf the comptroller implements an electronic infrastructure project under this section, the comptroller shall select and contract with a single private vendor to implement the project. The contract must require the application of the project to all state agencies without cost to the state until the project is initially implemented.
(e)iiThe private vendor selected under Subsection (d) must offer existing information resources technology for use in the project that:
(1)iiwill be available to all state agencies, including retirement systems;
(2)iiincludes each agency's work site benefits plan participants;
(3)iiwill use, to the extent possible, the department's information technology standards, including information security, privacy and disaster recovery, and Internet-based technology standards;
(4)iiincludes applications and a supporting platform that are already developed and used in connection with the electronic enrollment of work site benefits plans offered by other multiple plan providers;
(5)iiis available for use with a wide variety of plan and benefit providers;
(6)iican be easily modified to permit changes in benefits offered by the state or a state agency;
(7)iiprovides a solution to overcome limitations caused by the incompatibility of different legacy systems used by different state agencies and plan providers;
(8)iiis available for use over the Internet through existing or new websites or portals; and
(9)iiis supported, to the extent necessary, by:
(A)iilaptop and desktop enrollment and administration capabilities; and
(B)iia telephone call center.
SECTIONi4C.02.iiIf the electronic infrastructure under Section 2054.131, Government Code, as added by this article, is established, the comptroller as soon as reasonably possible shall develop a timetable and procedures under which each state agency shall implement the electronic infrastructure project for use by all work site benefits plan participants, including officers and employees and former officers and employees.
ARTICLE 4D. TEXASONLINE AUTHORITY MEETING
SECTIONi4D.01.iiSection 2054.256, Government Code, is amended to read as follows:
Sec.i2054.256.iiMEETINGS. (a) The authority shall meet at least quarterly.
(b)iiThe authority may hold an open or closed meeting by telephone conference subject to the requirements of Section 551.125(c)-(f).
ARTICLE 4E. TEXAS WORKFORCE COMMISSION COPIES
SECTIONi4E.01.iiSection 301.082, Labor Code, is amended to read as follows:
Sec.i301.082.iiCOPIES OF RECORDS. (a) The executive director may furnish
an electronic, [a] photostatic, or certified copy of a record in the commission's
possession to a person entitled to receive a copy of the record on application by the
person.
3548 78th Legislature — Regular Session 82nd Day
(b)iiThe executive director shall charge a reasonable fee in an amount set by the commission for a copy of a record furnished under this section. If an electronic record is furnished, the fee charged must be sufficient to recover the costs incurred in furnishing the electronic record, including the costs incurred for processing credit card and debit card transactions.
(c)iiThe executive director shall use TexasOnline to furnish electronic records under this section. In this subsection, "TexasOnline" has the meaning assigned by Section 2054.003, Government Code.
ARTICLE 4F. INSPECTION CERTIFICATES
AND VERIFICATION FORMS
SECTIONi4F.01.iiSections 548.251 and 548.253, Transportation Code, are amended to read as follows:
Sec.i548.251.iiDEPARTMENT TO PROVIDE INSPECTION CERTIFICATES AND VERIFICATION FORMS. (a) The department shall provide serially numbered inspection certificates and verification forms to inspection stations. The department may issue a unique inspection certificate for:
(1)iia commercial motor vehicle inspected under Section 548.201; or
(2)iia vehicle inspected under Subchapter F.
(b)iiThe department may adopt rules that authorize an inspection station to purchase inspection certificates by using the TexasOnline project under Subchapter I, Chapter 2054, Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001.
Sec.i548.253.iiINFORMATION TO BE RECORDED ON ISSUANCE OF INSPECTION CERTIFICATE AND VERIFICATION FORM. (a) An inspection station or inspector, on issuing an inspection certificate and verification form, shall:
(1)iimake a record and report as prescribed by the department of the inspection and certificate issued; and
(2)iiinclude in the inspection certificate and verification form the information required by the department for the type of vehicle inspected.
(b)iiThe department may adopt rules that authorize an inspection station to send a record, report, or information required by the department to the department by using the TexasOnline project under Subchapter I, Chapter 2054, Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001.
SECTIONi4F.02.iiSubchapter H, Chapter 548, Transportation Code, is amended by adding Section 548.508 to read as follows:
Sec.i548.508.iiADDITIONAL FEES INCURRED IN CONNECTION WITH USE OF TEXASONLINE PROJECT. (a) In addition to any other fee under this subchapter for inspection of a motor vehicle, including a commercial motor vehicle, an inspection station may charge and collect an amount in reasonable proportion to the costs incurred by the inspection station in connection with:
(1)iithe purchase of inspection certificates from the department under a rule adopted under Section 548.251(b); or
(2)iithe sending of records, reports, or information to the department under a rule adopted under Section 548.253(b).
(b)iiThe department shall adopt rules to implement and administer this section.
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PART 5. STATE CONTRACTING AND PROCUREMENT
ARTICLE 5A. OWNER-CONTROLLED INSURANCE PROGRAM
SECTIONi5A.01.iiSubchapter B, Chapter 223, Transportation Code, is amended by adding Section 223.050 to read as follows:
Sec.i223.050.iiOWNER-CONTROLLED INSURANCE PROGRAM. (a) The department shall require each person who contracts with the department under this chapter to use the insurance program established under Subchapter F, Chapter 2158, Government Code. The department may grant an exemption to a person regarding use of the insurance program for a specific project.
(b)iiThe department and the Texas Building and Procurement Commission shall enter into an interagency contract under which the Texas Building and Procurement Commission manages the insurance program described by Subsection (a) on behalf of the department and other users.
(c)iiThe Texas Transportation Commission may adopt rules to implement this section.
SECTIONi5A.02.iiChapter 2158, Government Code, is amended by adding Subchapter F to read as follows:
SUBCHAPTER F. OWNER-CONTROLLED INSURANCE FOR
PUBLIC WORKS
Sec.i2158.271.iiDEFINITIONS. In this subchapter:
(1)ii"Local government" means a county, municipality, special district, school district, junior college district, or other political subdivision of the state.
(2)ii"Owner-controlled insurance program" means a comprehensive and centrally controlled insurance program that provides broad and uniform insurance coverage to all participants, including subcontractors and the governmental entity, in a public works project.
(3)ii"Public works project" includes:
(A)iia building construction or repair project undertaken by or for a governmental entity;
(B)iia transportation project undertaken by or for a governmental entity, including a road or highway project; and
(C)iiother projects undertaken by or for a governmental entity, such as the construction or repair of a dam, water system, or sewer system, that are commonly considered public works projects.
Sec.i2158.272.iiOWNER-CONTROLLED INSURANCE PROGRAM. (a) The commission shall contract with one or more private vendors to develop an owner-controlled insurance program for state agencies that participate in public works projects.
(b)iiThe owner-controlled insurance program may include insurance for workers' compensation, employer's liability, builder's risk, primary and excess liability, and environmental liability insurance coverage.
(c)iiThe program may not include commercial auto liability coverage.
Sec.i2158.273.iiUSE OF PROGRAM BY STATE AGENCIES. Each state agency must use the owner-controlled insurance program for its public works projects.
3550 78th Legislature — Regular Session 82nd Day
Sec.i2158.274.iiUSE OF PROGRAM BY LOCAL GOVERNMENTS. A local government, subject to the commission's approval, may use the owner-controlled insurance program for its public works projects.
Sec.i2158.275.iiFEES. (a) The commission or the private vendor may charge a reasonable fee to a state agency, local government, or participant to use the owner-controlled insurance program, including a reasonable share of costs to implement the program.
(b)iiThe fee may be based on a percentage of the contract or public works project value.
Sec.i2158.276.iiRULES. The commission may adopt rules to implement this subchapter.
SECTIONi5A.03.iiSection 2166.258, Government Code, as amended by Chapters 614 and 1422, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i2166.258.iiCOMMON SURETY [OR INSURER]. (a) The commission or
an agency whose project is exempted from all or part of this chapter under Section
2166.003 may negotiate an arrangement advantageous to the state with a surety [or an
insurer, as appropriate,] authorized to do business in this state to furnish bonds[,
insurance, or both] that a contractor or subcontractor is required to execute or carry to
receive a contract or subcontract on a project administered by the commission or other
agency.
(b)iiIn accordance with Section 1, Chapter 87, Acts of the 56th Legislature,
Regular Session, 1959 (Article 7.19-1, Vernon's Texas Insurance Code), the
commission or other agency may not require a contractor or subcontractor for any
public building or other construction contract to obtain a surety bond from any
specific insurance or surety company, agent, or broker. To the extent consistent with
that law, the commission or other agency may require a contractor or subcontractor to
meet part or all of the bonding [or insurance] requirements for the project under the
negotiated arrangement.
[(b)iiExcept as provided by Subsection (c), notwithstanding Section 1, Chapter
87, Acts of the 56th Legislature, Regular Session, 1959 (Article 7.19-1, Vernon's
Texas Insurance Code), the commission or other agency may require a contractor or
subcontractor to meet part or all of the bonding or insurance requirements for the
project under the arrangement negotiated by the commission or other agency.]
(c)iiFor the purposes of this section, the commission [General Services
Commission] shall establish a program to provide surety technical assistance services
for the benefit of small businesses and historically underutilized businesses. The
commission may contract with insurance companies, surety companies, agents, or
brokers to implement this program.
(d)i[(c)]iiTo assist historically underutilized businesses, small businesses, or any
other businesses, if an agency by rule requires a proposal guaranty as a condition for
bidding on a contract, the guaranty may be in the form of a:
(1)iicashier's check or money order drawn on an account with a financial entity determined by the agency;
(2)iibid bond issued by a surety authorized to do business in this state; or
(3)iiany other method approved by the agency.
Friday, May 30, 2003 SENATE JOURNAL 3551
SECTIONi5A.04.iiThe Texas Department of Transportation is not required to use the insurance program established under Subchapter F, Chapter 2158, Government Code, as added by this Act, as required by Section 223.050, Transportation Code, as added by this Act, until the Texas Building and Procurement Commission has implemented the insurance program.
SECTIONi5A.05.iiThe change in law made by this article to Section 2166.258, Government Code, applies only to a contract for a construction project that is made on or after the effective date of this article. A contract that is made before the effective date of this article is governed by the law in effect at the time the contract is made, and that law is continued in effect for that purpose.
SECTIONi5A.06.iiA state agency is not required to use the insurance program established under Subchapter F, Chapter 2158, Government Code, as added by this Act, until the Texas Building and Procurement Commission has implemented the program.
ARTICLE 5B. COMMISSION ON PRIVATE INITIATIVE
SECTIONi5B.01.iiChapter 495, Government Code, is amended to read as follows:
CHAPTER 495.iiCONTRACTS FOR CORRECTIONAL
FACILITIES AND SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec.i495.001.iiIn this chapter, "commission" means the Commission on Private Initiative.
[Sections 495.002-495.010 reserved for expansion]
SUBCHAPTER B. COMMISSION ON PRIVATE INITIATIVE
Sec.i495.011.iiCOMMISSION. The commission shall administer the state's participation in a program using contracts with vendors for the provision of correctional facilities and services.
Sec.i495.012.iiEXECUTIVE DIRECTOR. The commission shall employ an executive director to administer the day-to-day operations of the commission and perform duties imposed by this chapter and other law.
Sec.i495.013.iiRULEMAKING AUTHORITY. The commission may adopt rules as necessary to administer this chapter.
Sec.i495.014.iiGENERAL POWERS AND DUTIES. The commission is responsible for:
(1)iithe submission of requests for proposals for contracts under Subchapter C and Chapter 507;
(2)iithe negotiation of those contracts;
(3)iiwith the assistance of the department, the oversight and monitoring of vendors participating in those contracts; and
(4)iiother duties assigned under this subtitle and other law.
Sec.i495.015.iiAUDITING AND MONITORING CONTRACTS. (a) The commission shall develop a comprehensive methodology for enhanced auditing and monitoring of all facilities operated under contract that house inmates and defendants of the department and releasees under the supervision of the department.
(b)iiThe commission shall ensure that all new and renewed contracts described by Subsection (a) include:
3552 78th Legislature — Regular Session 82nd Day
(1)iia provision that the commission or the department may conduct periodic contract compliance reviews, without advance notice, to monitor vendor performance;
(2)iiminimum acceptable standards of performance prescribed by the commission that include provisions regarding the health, safety, and welfare of inmates, defendants, and releasees;
(3)iia provision that if a review determines that a vendor is not in compliance with the contract, the commission may require that the vendor's per diem compensation be withheld until the vendor meets contract requirements or the vendor is replaced;
(4)iia provision requiring a vendor not in compliance with the contract to implement a plan of corrective action approved by the commission; and
(5)iia provision under which the state is indemnified for costs of litigation and for any damages in lawsuits alleging that the health, safety, or welfare of an inmate, defendant, or releasee in a contract facility is not protected.
(c)iiThe commission shall develop an appeals process, incorporated by reference into all new and renewed contracts, under which a vendor may appeal any imposed sanction under the contract, with the appeals process including the right to a formal hearing and a right to a final determination by the board.
Sec.i495.016.iiPER DIEM RATE. (a) The commission shall establish a daily "price to beat" per diem rate for each facility operated by the department or operated under a contract with the department.
(b)iiThe rate established under Subsection (a) must be based on a level and quality of programs at least equal to those provided by state-operated facilities that house similar types of inmates and at a rate that provides the state with a savings of not less than five percent.
(c)iiThe following entities shall assist the commission in establishing the per diem rate:
(1)iithe department;
(2)iithe comptroller;
(3)iithe state auditor;
(4)iithe Governor's Office of Budget and Planning; and
(5)iithe Legislative Budget Board.
Sec.i495.017. BIENNIAL REPORT. (a) Not later than January 1 of each odd-numbered year, the commission shall present a report to the governor, lieutenant governor, and speaker of the house of representatives. The report must state:
(1)iiwhether the commission believes the number of beds or the percentage of beds provided to the department under contract should be decreased, remain the same, or be increased; and
(2)iiif the commission believes the number of beds or the percentage of beds provided to the department under contract should be increased:
(A)iia list of facilities operated by the department that instead should be operated under contract; and
(B)iithe projected savings to the department if the beds become beds operated under contract.
Friday, May 30, 2003 SENATE JOURNAL 3553
(b)iiIn addition to the information required by Subsection (a), the report must contain a qualitative and quantitative analysis of the performance of vendors operating facilities under this subtitle. The analysis must provide information on the operations of each vendor, including information about treatment programs implemented, numbers of escapes, major disciplinary events, and other matters determined to be important by the commission.
[Sections 495.018-495.040 reserved for expansion]
SUBCHAPTER Ci[A].iiCONTRACTS WITH PRIVATE
VENDORS AND COMMISSIONERS COURTS
FOR INSTITUTIONAL DIVISION FACILITIES
Sec.i495.041i[495.001].iiAUTHORITY TO CONTRACT. (a) The commission
[board] may contract with a private vendor or with the commissioners court of a
county for the financing, construction, operation, maintenance, or management of a
secure correctional facility.
(b)iiA facility operated, maintained, and managed under this subchapter by a private vendor or county must:
(1)ii[hold not more than an average daily population of 1,000 inmates;
[(2)]iicomply with federal constitutional standards and applicable court
orders; and
(2)i[(3)]iireceive and retain, as an individual facility, accreditation from the
American Correctional Association.
(c)iiA facility authorized by this subchapter may be located on private land or on land owned by the state or a political subdivision of the state. The board may accept land donated for that purpose.
(d)ii[The population requirements imposed by Subsection (b)(1) do not apply to
a facility that is under construction or completed before April 14, 1987.
[(e)]iiThe commission [board] shall give priority to entering contracts under this
subchapter that will provide the institutional division with secure regionally based
correctional facilities designed to successfully reintegrate inmates into society through
preparole, prerelease, work release, and prison industries programs.
[(f)iiNotwithstanding Subsection (b)(1), a facility that before December 1, 1991,
was operated, maintained, and managed under this subchapter by a private vendor or
county may not hold more than an average daily population of 500 inmates, unless the
commissioners court of the county in which the facility is located expresses in a
resolution on the subject that the limit on population imposed by this subsection
should not apply to the facility.]
Sec.i495.042i[495.002].iiINMATES. The institutional division may confine only
minimum or medium security inmates in a facility authorized by this subchapter. An
inmate confined in a facility authorized by this subchapter remains in the legal
custody of the institutional division.
Sec.i495.043i[495.003].iiCONTRACT PROPOSALS; QUALIFICATIONS
AND STANDARDS. (a) The commission [board] may not award a contract under this
subchapter unless the commission [board] requests proposals and receives a proposal
that meets or exceeds, in addition to requirements specified in the request for
proposals, the requirements specified in Subsections (b), (c), and (d).
3554 78th Legislature — Regular Session 82nd Day
(b)iiA person proposing to enter a contract with the commission [board] under
this subchapter must demonstrate:
(1)iithe qualifications and the operations and management experience to carry out the terms of the contract; and
(2)iithe ability to comply with the standards of the American Correctional Association and with specific court orders.
(c)iiIn addition to meeting the requirements specified in the requests for proposals, a proposal must:
(1)iiprovide for regular, on-site monitoring by the commission [institutional
division];
(2)iiacknowledge that payment by the state is subject to the availability of appropriations;
(3)iiprovide for payment of a maximum amount per biennium;
(4)ii[offer a level and quality of programs at least equal to those provided by
state-operated facilities that house similar types of inmates and at a cost that provides
the state with a savings of not less than 10 percent of the cost of housing inmates in
similar facilities and providing similar programs to those types of inmates in
state-operated facilities;
[(5)]iipermit the state to terminate the contract for cause, including as cause
the failure of the private vendor or county to meet the conditions required by this
subchapter and other conditions required by the contract;
(5)i[(6)]iiprovide that cost adjustments may be made only once each fiscal
year, to take effect at the beginning of the next fiscal year;
(6)i[(7)iihave an initial contract term of not more than three years, with an
option to renew for additional periods of two years;
[(8)]iiif the proposal includes construction of a facility, contain a
performance bond approved by the commission [board] that is adequate and
appropriate for the proposed contract;
(7)i[(9)]iiprovide for assumption of liability by the private vendor or county
for all claims arising from the services performed under the contract by the private
vendor or county;
(8)i[(10)]iiprovide for an adequate plan of insurance for the private vendor or
county and its officers, guards, employees, and agents against all claims, including
claims based on violations of civil rights arising from the services performed under
the contract by the private vendor or county;
(9)i[(11)]iiprovide for an adequate plan of insurance to protect the state
against all claims arising from the services performed under the contract by the private
vendor or county and to protect the state from actions by a third party against the
private vendor or county, its officers, guards, employees, and agents as a result of the
contract;
(10)i[(12)]iiprovide plans for the purchase and assumption of operations by
the state in the event of the bankruptcy of the private vendor or inability of the county
to perform its duties under the contract; and
(11)i[(13)]iicontain comprehensive standards for conditions of confinement.
Friday, May 30, 2003 SENATE JOURNAL 3555
(d)iiBefore the commissioners court of a county proposes to enter into a contract under this subchapter, the commissioners court of the county must receive the written approval of the sheriff of the county. A sheriff may not unreasonably withhold written approval under this subsection. A correctional facility provided by a county under this subchapter is subject to the same standards and requirements as a correctional facility provided by a private vendor.
(e)iiThe commission, if appropriate, shall request proposals for a contract
providing residential infant care and parenting programs for mothers who are confined
by the department. To the extent practicable, a proposal must offer a program
substantially similar to the residential infant care and parenting program operated by
the Texas Youth Commission [Legislative Budget Board determines the costs and cost
savings under Subsection (c)(4) and may consider any relevant factor, including
additional costs to the state for providing the same service as a private vendor or
county, indirect costs properly allocable to either the state or the private vendor or
county, and continuing costs to the state directly associated with the contract].
Sec.i495.044i[495.004].iiLIMITATION ON AUTHORITY OVER INMATES. A
private vendor or county operating under a contract authorized by this subchapter may
not:
(1)iicompute inmate release and parole eligibility dates;
(2)iiaward good conduct time;
(3)iiapprove an inmate for work, medical, or temporary furlough or for preparole transfer; or
(4)iiclassify an inmate or place an inmate in less restrictive custody than the custody ordered by the institutional division.
Sec.i495.045i[495.005].iiCIVIL LIABILITY. A private vendor operating under a
contract authorized by this subchapter may not claim sovereign immunity in a suit
arising from the services performed under the contract by the private vendor or
county. This section does not deprive the private vendor or the state of the benefit of
any law limiting exposure to liability, setting a limit on damages, or establishing a
defense to liability.
Sec.i495.046.iiDWI BEDS. The commission shall enter into contracts under this subchapter that provide the department with not fewer than 1,000 beds for inmates serving sentences for offenses under Chapter 49, Penal Code.
[Sections 495.047-495.060 reserved for expansion]
[Sec.i495.006.iiCONVERSION OF FACILITY. The board may not convert a
facility into a correctional facility operated by a private vendor or by a county if,
before April 14, 1987, the facility is:
[(1)iioperated as a correctional facility by the board; or
[(2)iibeing constructed by the board for use as a correctional facility.
[Sec.i495.007.iiLIMITATION. The board may not enter into contracts under this
subchapter for more than 4,580 beds.
[Sec.i495.008.iiAUDITING AND MONITORING CONTRACTS. (a) The
department shall develop a comprehensive methodology for enhanced auditing and
monitoring of all facilities operated under contract with the department that house
inmates of the department and releasees under the supervision of the department. To
3556 78th Legislature — Regular Session 82nd Day
[(b)iiThe department shall ensure that all new and renewed contracts described
by Subsection (a) include:
[(1)iia provision that the department or a designee of the department may
conduct periodic contract compliance reviews, without advance notice, to monitor
vendor performance;
[(2)iiminimum acceptable standards of performance prescribed by the
department that include provisions regarding the health, safety, and welfare of inmates
and releasees;
[(3)iia provision that if a review determines that a vendor is not in
compliance with the contract, the department may require that the vendor's per diem
compensation be withheld until the vendor meets contract requirements or the vendor
is replaced;
[(4)iia provision requiring a vendor not in compliance with the contract to
implement a plan of corrective action approved by the department; and
[(5)iia provision under which the state is indemnified for costs of litigation
and for any damages in lawsuits alleging that the health, safety, or welfare of an
inmate or releasee in a contract facility is not protected.
[(c)iiThe department shall complete at least one enhanced audit for each facility
described by Subsection (a), without regard to whether the facility is operated by a
public or private vendor. The enhanced audit must include an enhanced contract
compliance review of any vendors hired by a community supervision and corrections
department to operate a facility.
[(d)iiThe department, in conjunction with an advisory committee composed of
state officials and private officials from within the industry, shall adopt rules to
implement the requirements of this section.
[(e)iiThe department shall develop an appeals process, incorporated by reference
into all new and renewed contracts, under which a vendor may appeal any imposed
sanction under the contract, with the appeals process including the right to a formal
hearing and a right to a final determination by the board.
[(f)iiThe department shall submit a report to the governor and the Legislative
Budget Board not later than January 1, 2003, describing its efforts to implement the
requirements of this section. The report must include a summary of contracts and
vendors, compliance reviews conducted, incidents of contract noncompliance,
sanctions imposed, corrective actions taken, and current contract status. This
subsection expires February 1, 2003.]
SUBCHAPTER D [B].iiMISCELLANEOUS CONTRACTS FOR
CORRECTIONAL FACILITIES AND SERVICES
Sec.i495.061i[495.021].iiLEASE-PURCHASE, INSTALLMENT
CONTRACTS. (a) The commission [board] may contract with the commissioners
court of a county to use, lease-purchase, purchase on an installment contract, or
acquire in any other manner a secure correctional facility financed and constructed
Friday, May 30, 2003 SENATE JOURNAL 3557
(b)iiA contract under this section is subject to review and approval by the Bond Review Board under the provisions of Chapter 1231 without regard to the amount or the duration of the contract.
Sec.i495.062 [495.022].iiCONTRACTS WITH FEDERAL GOVERNMENT.
(a) The commission [board] may contract with the federal government for the lease of
any military base or other federal facility that is not being used by the federal
government.
(b)iiA facility leased under this section may be used by the institutional division for the purpose of housing inmates determined by the division to be minimum security inmates.
(c)iiThe commission [board] may not enter into a contract under this section
unless funds have been appropriated specifically for the purpose of making payments
on contracts authorized under this section.
(d)iiThe commission [board] shall attempt to enter into contracts authorized by
this section that will provide the institutional division with facilities located in the
various parts of the state.
(e)iiA facility leased under this section by the commission [board] must comply
with federal constitutional standards and applicable court orders.
Sec.i495.063i[495.023].iiCONTRACTS FOR DIAGNOSTIC AND
EVALUATION SERVICES. (a) The commission [institutional division] shall request
proposals and may award one contract to a private vendor or community supervision
and corrections department to screen and diagnose, either before or after adjudications
of guilt, persons who may be transferred to the division. The term of the contract may
not be for more than two years. The commission [institutional division] shall award
the contract if the commission [division] determines that:
(1)iithe person proposing to enter into the contract can provide psychiatric, psychological, or social evaluations of persons who are to be transferred to the division;
(2)iithe services provided will reduce the chances of misdiagnosis of mentally ill and mentally retarded persons who are to be transferred to the division, expedite the diagnostic process, and offer savings to the division;
(3)iithe quality of services offered equals or exceeds the quality of the same services provided by the division; and
(4)iithe state will assume no additional liability by entering into a contract for the services.
(b)iiIf the commission [institutional division] enters into the contract and during
or at the end of the contract period determines that the diagnostic services performed
under the contract are of a sufficient quality and are cost effective, the commission
[division] shall submit requests for additional proposals for contracts and award one
or more contracts in the same manner as provided by Subsection (a).
Sec.i495.064i[495.024].iiRELEASE OF OUT-OF-STATE INMATES. A county
or a municipality or a private vendor operating a correctional facility under a contract
with a county under Subchapter F, Chapter 351, Local Government Code, or a
3558 78th Legislature — Regular Session 82nd Day
[Sections 495.065-495.090 reserved for expansion]
SUBCHAPTER E. PROVISIONS APPLICABLE TO INSTITUTIONAL
DIVISION, PAROLE, AND STATE JAIL FELONY FACILITIES
Sec.i495.091.iiBEDS. On a determination by the commission that an increase in the number or percentage of contract beds is cost-effective, the commission and the board may enter into an interagency contract to increase the number of beds that are provided to the department under contract.
Sec.i495.092.iiENTERPRISE EFFORTS IN CONTRACT FACILITIES. (a) To the greatest extent possible, entities entering into contracts under this subtitle shall generate revenue through participation in inmate industry and agriculture programs and through the implementation of commissary programs and other appropriate revenue generating programs that foster sound corrections policy or assist in the prevention and solving of crimes, reduction in the flow of contraband, gathering of criminal intelligence data and information, suppression of gang activity, and resolution of complaints made by inmates, defendants, department employees, and employees of the entities entering into the contracts.
(b)iiIn developing revenue-generating strategies, the entity entering into the contract, to ensure good order and public safety, shall develop written security policies consistent with existing corrections practices in the federal prison system, this state, or other states.
(c)iiA percentage of the profits generated from programs described by Subsection (a), as negotiated by contract, must be paid to the department, except that 100 percent of commissary program profits must be paid to the department. For purposes of this subsection, deductions from a participant's wages authorized by Section 497.0581 and paid to an entity entering into a contract with the department are considered profits.
Sec.i495.093.iiSTATE EMPLOYEE IMPACT. In deciding whether to accept a proposal for a contract under this subtitle to provide beds to the department, the commission shall consider the effect that entering into the contract would have on state employees employed in correctional facilities.
SECTIONi5B.02.iiSubchapter C, Chapter 497, Government Code, is amended to read as follows:
SUBCHAPTER C. COMMISSION ON PRIVATE INITIATIVE [SECTOR
PRISON INDUSTRIES OVERSIGHT AUTHORITY]
Sec.i497.051.iiPURPOSE; DEFINITION. (a) The Commission on Private
Initiative [Sector Prison Industries Oversight Authority] is created to:
(1)iiapprove, certify, and oversee the operation of private sector prison industries programs in the department, the Texas Youth Commission, and in county correctional facilities in compliance with the federal prison enhancement certification program established under 18 U.S.C. Section 1761; and
Friday, May 30, 2003 SENATE JOURNAL 3559
(2)iias required by Chapter 495, administer the state's participation in a
program using contracts with vendors for the provision of correctional facilities and
services. [The executive director shall provide the authority with clerical and technical
support as necessary for the authority to perform duties imposed on the authority by
this subchapter and shall ensure that the department implements the policies adopted
by the authority that relate to the operation of private sector prison industries
programs.]
(b)iiIn this subchapter:
(1)ii"Commission" ["Authority"] means the Commission on Private
Initiative [Sector Prison Industries Oversight Authority].
(2)ii"Participant" means a participant in a private sector prison industries program.
Sec.i497.052.iiMEMBERSHIP. (a) The commission [authority] is composed of
nine members appointed by the governor:
(1)iione of whom is representative of organized labor;
(2)ii[one of whom is representative of employers;
[(3)]iione of whom is representative of groups advocating the rights of
victims of criminal offenses;
(3)i[(4)]iione of whom is representative of groups advocating the rights of
inmates[;
[(5)iione of whom is experienced in the field of vocational rehabilitation];
and
(4)iisixi[(6)iifour] of whom are public members.
(b)iiThe following individuals shall serve as ex officio members of the
commission [authority]:
(1)iia member of the house of representatives designated by the speaker of the house;
(2)iia member of the senate designated by the lieutenant governor;
(3)iithe chairman [executive director] of the Texas Board [Department] of
Criminal Justice [or the designee of the executive director];
(4)iithe executive director of the Texas Workforce Commission or the
designee of the executive director; [and]
(5)iithe state auditor; and
(6)iithe director of the Governor's Office of Budget and Planning [the
executive director of the Texas Youth Commission or the designee of the executive
director].
(c)iiThe governor shall appoint as an employer liaison to the commission
[authority] one person who is an employer in the private sector prison industries
program that is certified as in compliance with the federal prison enhancement
certification program established under 18 U.S.C. Section 1761. The employer liaison
is entitled to attend meetings of the commission [authority] and offer advice to the
commission [authority] from the perspective of a prison industries employer. The
employer liaison serves at the pleasure of the governor, is not entitled to vote on any
issue considered by the commission [authority], and is entitled to reimbursement for
travel expenses in the same manner as is a member of the commission [authority]
under Section 497.055.
3560 78th Legislature — Regular Session 82nd Day
(d)iiA person may not be a public member of the commission [authority] if the
person or the person's spouse:
(1)iiis employed by or participates in the management of a business entity or
other organization regulated by or receiving money from the commission [authority];
(2)iiowns or controls, directly or indirectly, more than a 10 percent interest in
a business entity or other organization regulated by or receiving money from the
commission [authority]; or
(3)iiuses or receives a substantial amount of tangible goods, services, or
money from the commission [authority] other than compensation or reimbursement
authorized by law for commission [authority] membership, attendance, or expenses.
(e)iiAppointments to the commission [authority] shall be made without regard to
the race, color, disability, sex, religion, age, or national origin of the appointees.
Sec.i497.0521.iiCONFLICTS OF INTEREST.ii(a)iiIn this section, "Texas trade association" means a cooperative and voluntarily joined 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 of the commission [authority] and may not
be a commission [an authority] 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 private sector prison industries; or
(2)iithe person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of private sector prison industries.
(c)iiA person may not be a member of the commission [authority] or act as the
general counsel to the commission [authority] if the person is required to register as a
lobbyist under Chapter 305 because of the person's activities for compensation on
behalf of a profession related to the operation of the commission [authority].
Sec.i497.0522.iiREMOVAL PROVISIONS.ii(a)iiIt is a ground for removal from
the commission [authority] that a member:
(1)iidoes not have at the time of taking office the qualifications required by Section 497.052(a);
(2)iidoes not maintain during service on the commission [authority] the
qualifications required by Section 497.052(a);
(3)iiis ineligible for membership under Section 497.052(d) or 497.0521(b) or (c);
(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 half of the regularly scheduled commission
[authority] meetings that the member is eligible to attend during a calendar year
without an excuse approved by a majority vote of the commission [authority].
Friday, May 30, 2003 SENATE JOURNAL 3561
(b)iiThe validity of an action of the commission [authority] is not affected by the
fact that it is taken when a ground for removal of a commission [an authority] 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 commission
[authority] 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 commission [authority], who shall
then notify the governor and the attorney general that a potential ground for removal
exists.
Sec.i497.0523.iiINFORMATION: REQUIREMENTS FOR OFFICE OR
EMPLOYMENT. The executive director or the executive director's designee shall
provide to members of the commission [authority] and to agency employees, as often
as necessary, information regarding the requirements for office or employment under
this subchapter, including information regarding a person's responsibilities under
applicable laws relating to standards of conduct for state officers or employees.
Sec.i497.0524.iiTRAINING PROGRAM.ii(a)iiA person who is appointed to and
qualifies for office as a member of the commission [authority] may not vote,
deliberate, or be counted as a member in attendance at a meeting of the commission
[authority] until the person completes a training program that complies with this
section.
(b)iiThe training program must provide the person with information regarding:
(1)iithe legislation that created the commission [authority];
(2)iithe programs operated by the commission [authority];
(3)iithe role and functions of the commission [authority];
(4)iithe rules of the commission [authority];
(5)iithe current budget for the commission [authority];
(6)iithe results of the most recent formal audit of the commission [authority];
(7)iithe requirements of:
(A)iithe open meetings law, Chapter 551;
(B)iithe public information law, Chapter 552;
(C)iithe administrative procedure law, Chapter 2001; and
(D)iiother laws relating to public officials, including conflict of interest laws; and
(8)iiany applicable ethics policies adopted by the department or the Texas Ethics Commission.
(c)iiA person appointed to the commission [authority] 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.
Sec.i497.0525.iiPOLICYMAKING AND MANAGEMENT
RESPONSIBILITIES. The commission [authority] shall develop and implement
policies that clearly separate the policymaking responsibilities of the commission
[authority] and the management responsibilities of the staff of the commission
[authority].
3562 78th Legislature — Regular Session 82nd Day
Sec.i497.0526.iiPUBLIC ACCESS. The commission [authority] shall develop
and implement policies that provide the public with a reasonable opportunity to
appear before the commission [authority] and to speak on any issue under the
jurisdiction of the commission [authority].
Sec.i497.0527.iiCOMPLAINTS.ii(a)iiThe commission [authority] shall maintain
a file on each written complaint filed with the commission [authority]. The file must
include:
(1)iithe name of the person who filed the complaint;
(2)iithe date the complaint is received by the commission [authority];
(3)iithe subject matter of the complaint;
(4)iithe name of each person contacted in relation to the complaint;
(5)iia summary of the results of the review or investigation of the complaint; and
(6)iian explanation of the reason the file was closed, if the commission
[authority] closed the file without taking action other than to investigate the
complaint.
(b)iiThe commission [authority] shall provide to the person filing the complaint
and to each person who is a subject of the complaint a copy of the commission's
[authority's] policies and procedures relating to complaint investigation and
resolution.
(c)iiThe commission [authority], at least quarterly until final disposition of the
complaint, shall notify the person filing the complaint and each person who is a
subject of the complaint of the status of the investigation unless the notice would
jeopardize an undercover investigation.
Sec.i497.053.iiTERMS. Appointed members of the commission [authority] serve
staggered six-year terms, with three members' terms expiring on February 1 of each
odd-numbered year.
Sec.i497.054.iiPRESIDING OFFICER. The governor shall designate the
presiding officer from among the members of the commission [authority], and the
presiding officer shall serve in that capacity at the pleasure of the governor.
Sec.i497.055.iiREIMBURSEMENT. A member of the commission [authority] is
not entitled to compensation but is entitled to reimbursement of the travel expenses
incurred by the member while conducting the business of the commission [authority]
as provided in the General Appropriations Act.
Sec.i497.056.iiPRIVATE SECTOR PRISON INDUSTRY [INDUSTRIES]
EXPANSION ACCOUNT.ii(a) The department shall forward money collected under
Section 497.0581 to the comptroller. The comptroller shall deposit the money in the
general revenue fund.
(b)iiTo construct more facilities and increase the number of participants, the
private sector prison industry expansion account is created as an account in the
general revenue fund. Money in the account may be appropriated only to construct
work facilities, recruit corporations to participate as private sector industries
programs, and pay costs of the commission [authority] and department in
implementing this subchapter, including the cost to the department in reimbursing
commission [authority] members and the employer liaison for expenses.
Friday, May 30, 2003 SENATE JOURNAL 3563
(c)iiOn each certification by the department that an amount has been deposited to the credit of the general revenue fund from deductions from participants' wages under Section 497.0581, the comptroller shall transfer an equivalent amount from the general revenue fund to the private sector prison industry expansion account, until the balance in the account is $2 million. On a certification occurring when the balance in the account is more than $2 million, the comptroller shall transfer to the account an amount equal to one-half of the amount deposited to the credit of the general revenue fund from deductions from participants' wages.
(d)iiThe department during each calendar quarter shall make a certification of the amount deposited during the previous calendar quarter to the credit of the general revenue fund from deductions from participants' wages under Section 497.0581.
Sec.i497.057.iiRULES. The commission [authority] shall adopt rules as
necessary to ensure that the private sector prison industries program authorized by this
subchapter is in compliance with the federal prison enhancement certification program
established under 18 U.S.C. Section 1761.
Sec.i497.058.iiPREVAILING WAGE. (a) The commission [authority] by rule
shall require that participants at each private sector prison industries program be paid
not less than the prevailing wage as computed by the commission [authority], except
that the commission [authority] may permit employers to pay a participant the
minimum wage for the two-month period beginning on the date participation begins.
(b)iiFor the purposes of computations required by this section:
(1)iithe prevailing wage is the wage paid by the employer for work of a similar nature in the location in which the work is performed;
(2)iiin the event that the employer has no employees other than those employed under this subchapter performing work of a similar nature within the location, the prevailing wage for work of a similar nature is determined by reference to openings and wages by occupation data collected by the labor market information department of the Texas Workforce Commission; and
(3)iithe location in which work is performed is the local workforce development area in which the work is performed.
Sec.i497.0581.iiPARTICIPANT CONTRIBUTIONS; ASSISTANCE
ACCOUNT.ii(a)iiThe commission [authority] by rule shall determine the amount of
deductions to be taken from wages received by the participant under this subchapter.
In determining the amount of deductions under this section, the commission
[authority] shall ensure that the deductions do not place the private sector prison
industries programs in the department in noncompliance with the federal prison
enhancement certification program established under 18 U.S.C. Section 1761.
(b)iiThe private sector prison industry crime victims assistance account is created
as an account in the general revenue fund. Money in the account may be appropriated
only to the commission [authority] for the purpose of aiding victims of crime, under
rules adopted by the commission [authority].
Sec.i497.059.iiLIMITING IMPACT ON NON-PRISON INDUSTRY.ii(a)iiThe
commission [authority] may not grant initial certification to a private sector prison
industries program if the commission [authority] determines that the operation of the
program would result in the loss of existing jobs provided by the employer in this
state.
3564 78th Legislature — Regular Session 82nd Day
(b)iiThe commission [authority] shall adopt rules to determine whether a
program would cause the loss of existing jobs provided by the employer in this state.
Sec.i497.060.iiWORKERS' COMPENSATION. The commission [authority] by
rule shall require private sector prison industries program employers to meet or
exceed all federal requirements for providing compensation to participants injured
while working.
Sec.i497.061.iiRECIDIVISM STUDIES. The commission [authority], with the
cooperation of the Criminal Justice Policy Council, shall gather data to determine
whether participation in a private sector prison industries program is a factor that
reduces recidivism among participants.
Sec.i497.062.iiLIMITATION ON NUMBER OF PARTICIPANTS;
GOALS.ii(a)iiThe commission [authority] may certify any number of private sector
prison industries programs that meet or exceed the requirements of federal law and the
rules of the commission [authority], but in no event may the commission [authority]
permit more than 2,000 participants in the program at any one time.
(b)iiThe commission [authority] shall establish as a goal that the program have at
least 1,800 participants by January 1, 2006.
SECTIONi5B.03.iiSection 507.001(a), Government Code, is amended to read as follows:
(a)iiThe state jail division may operate, maintain, and manage state jail felony
facilities to confine inmates described by Section 507.002, and the department may
finance and construct those facilities. The Commission on Private Initiative [state jail
division, with the approval of the board,] may contract with the institutional division,
a private vendor, a community supervision and corrections department, or the
commissioners court of a county for the construction, operation, maintenance, or
management of a state jail felony facility. The community justice assistance division
shall assist the commission [state jail division] to contract with a community
supervision and corrections department for the construction, operation, maintenance,
or management of a state jail felony facility. The Commission on Private Initiative
[state jail division] shall consult with the community justice assistance division before
contracting with a community supervision and corrections department under this
section. A community supervision and corrections department or the commissioners
court of a county that contracts under this section may subcontract with a private
vendor for the provision of any or all services described by this subsection. A
community supervision and corrections department that contracts under this section
may subcontract with the commissioners court of a county for the provision of any or
all services described by this subsection. The Commission on Private Initiative
[board] may contract with a private vendor or the commissioners court of a county for
the financing or construction of a state jail felony facility.
SECTIONi5B.04.iiThe governor, in making appointments to the Commission on Private Initiative as required by Section 497.052, Government Code, as amended by this article, shall appoint public members to the positions held by the employer representative and the vocational rehabilitation representative as soon as the terms for those positions expire or as those positions become vacant. The changes in law made by this article to Section 497.052, Government Code, do not affect the entitlement of a person who, immediately before the effective date of this article, holds the position on
Friday, May 30, 2003 SENATE JOURNAL 3565
SECTIONi5B.05. (a) On September 1, 2003, funds appropriated to the Texas Department of Criminal Justice for the private facilities division are transferred to the Commission on Private Initiative.
(b)iiOn September 1, 2003, a reference in law to the Private Sector Prison Industries Oversight Authority means the Commission on Private Initiative.
[ARTICLES 5C AND 5D. RESERVED]
ARTICLE 5E. GENERAL STATE PROCUREMENT
SECTIONi5E.01.iiSection 2171.101(a), Government Code, is amended to read as follows:
(a)iiThe office of vehicle fleet management shall establish a vehicle reporting
system to assist each state agency in the management of its vehicle fleet. A state
agency shall be required to submit the reports on a monthly basis [not more often than
semiannually].
SECTIONi5E.02.iiSections 2171.102(a) and (b), Government Code, are amended to read as follows:
(a)iiThe office of vehicle fleet management may, for a fee, [shall] provide routine
periodic maintenance service to state agencies located in Travis County. [The office
shall charge a fee for the service.]
(b)iiThe office may [shall] negotiate contracts for major overhauls and other
extensive mechanical work.
SECTIONi5E.03.iiSections 2171.104(c) and (d), Government Code, are amended to read as follows:
(c)iiThe management plan must address:
(1)iiopportunities for consolidating and privatizing the operation and management of vehicle fleets in areas where there is a concentration of state agencies, including the Capitol Complex and the Health and Human Services Complex in Austin;
(2)iithe number and type of vehicles owned by each agency and the purpose each vehicle serves;
(3)iiprocedures to increase vehicle use and improve the efficiency of the state vehicle fleet;
(4)iiprocedures to reduce the cost of maintaining state vehicles;
(5)iiprocedures to handle surplus or salvage [the sale of excess] state
vehicles; and
(6)iilower-cost alternatives to using state-owned vehicles, including:
(A)iiusing rental cars; and
(B)iireimbursing employees for using personal vehicles.
(d)iiThe commission shall require a state agency to transfer surplus or salvage
vehicles identified by the management plan to the commission and shall sell or
dispose of the [excess] vehicles in accordance with the provisions of Chapter 2175
that provide for disposition of surplus or salvage property by the commission
[identified by the management plan and deposit the proceeds from the sale into the
account that the agency used to purchase the vehicles].
3566 78th Legislature — Regular Session 82nd Day
SECTIONi5E.04.iiSection 51.9335(b), Education Code, is amended to read as follows:
(b)iiIn determining what is the best value to an institution of higher education, the institution shall consider:
(1)iithe purchase price;
(2)iithe reputation of the vendor and of the vendor's goods or services;
(3)iithe quality of the vendor's goods or services;
(4)iithe extent to which the goods or services meet the institution's needs;
(5)iithe vendor's past relationship with the institution;
(6)iithe impact on the ability of the institution to comply with laws and rules relating to historically underutilized businesses and to the procurement of goods and services from persons with disabilities;
(7)iithe total long-term cost to the institution of acquiring the vendor's goods or services; and
(8)iiany other relevant factor that a private business entity would consider in
selecting a vendor[; and
[(9)iithe use of material in construction or repair to real property that is not
proprietary to a single vendor unless the institution provides written justification in the
request for bids for use of the unique material specified].
SECTIONi5E.05.iiChapter 2151, Government Code, is amended by adding Section 2151.005 to read as follows:
Sec.i2151.005.iiEXEMPTIONS RELATED TO LEGAL SERVICES. This subtitle does not apply to:
(1)iiobtaining outside legal counsel services;
(2)iiobtaining expert witnesses; or
(3)iiprocuring litigation-related goods and services for which competitive procurement is not feasible under the circumstances.
SECTIONi5E.06.iiSection 2155.078(k), Government Code, is amended to read as follows:
(k)iiThe commission shall require a reasonable number of [24] hours of
continuing education [each year] to maintain a certification level. The commission
may allow attendance at equivalent certification training recognized by the
commission to count toward the required number of [up to 16] hours [of the
continuing education requirement]. Maintenance of the certification level may be by
yearly renewal or another reasonable renewal period comparable to nationally
recognized certification requirements.
SECTIONi5E.07.iiSection 2155.141, Government Code, is amended to read as follows:
Sec.i2155.141.ii[CERTAIN OTHER] PURCHASES FOR AUXILIARY
ENTERPRISE NOT WITHIN COMMISSION'S PURCHASING AUTHORITY. The
commission's authority does not extend to a purchase of goods and services[:
[(1)iifor resale;
[(2)]iifor an auxiliary enterprise[; or
[(3)iifor an organized activity relating to an instructional department of an
institution of higher learning or a similar activity of another state agency].
Friday, May 30, 2003 SENATE JOURNAL 3567
SECTIONi5E.08.iiSubchapter C, Chapter 2155, Government Code, is amended by adding Section 2155.148 to read as follows:
Sec.i2155.148.iiCERTAIN PURCHASES FOR TEXAS STATEWIDE EMERGENCY SERVICES PERSONNEL RETIREMENT FUND. (a) The fire fighters' pension commissioner is delegated all purchasing functions relating to the purchase of goods or services from funds other than general revenue funds for a purpose the state board of trustees of the Texas statewide emergency services personnel retirement fund determines relates to the fiduciary duties of the retirement fund.
(b)iiThe fire fighters' pension commissioner shall acquire goods or services by any procurement method approved by the state board of trustees of the Texas statewide emergency services personnel retirement fund that provides the best value to the retirement fund. The fire fighters' pension commissioner shall consider the best value standards provided by Section 2155.074.
(c)iiThe commission shall procure goods or services for the fire fighters' pension commissioner at the request of the pension commissioner, and the pension commissioner may use the services of the commission in procuring goods or services.
SECTIONi5E.09.iiSubchapter I, Chapter 2155, Government Code, is amended by adding Section 2155.510 to read as follows:
Sec.i2155.510.iiREBATES. The commission may collect a rebate from a vendor under a contract listed on a schedule developed under this subchapter.
SECTIONi5E.10.iiThe heading to Subchapter B, Chapter 2157, Government Code, is amended to read as follows:
SUBCHAPTER B. CATALOG [CATALOGUE] PURCHASE METHOD
SECTIONi5E.11.iiSection 2157.061, Government Code, is amended to read as follows:
Sec.i2157.061.iiUSE OF CATALOG [CATALOGUE] PURCHASE METHOD
REQUIRED UNLESS BEST VALUE AVAILABLE ELSEWHERE. The commission
or a state agency shall purchase an automated information system through the catalog
[catalogue] procedure provided by this subchapter unless the commission or state
agency determines that the best value may be obtained from another purchase method
authorized by this subtitle.
SECTIONi5E.12.iiSection 2157.0611, Government Code, is amended to read as follows:
Sec.i2157.0611.iiREQUIREMENT TO EVALUATE THREE OFFERS
[PROPOSALS] WHEN POSSIBLE. A catalog [catalogue] purchase or lease that
exceeds $2,000 or a greater amount prescribed by commission rule shall, when
possible, be based on an evaluation of at least three catalog offers [catalogue
proposals] made to the commission or other state agency by catalog [qualified]
information systems vendors. If at least three catalog offers [catalogue proposals] are
not evaluated by the commission or other state agency before a purchase or lease that
exceeds the threshold amount is made, the commission or other agency shall
document the reasons for that fact before making the purchase or lease under Section
2157.063.
SECTIONi5E.13.iiSection 2157.062, Government Code, is amended to read as follows:
3568 78th Legislature — Regular Session 82nd Day
Sec.i2157.062.iiBASIC REQUIREMENTS FOR CATALOG [APPLICATION
PROCESS FOR QUALIFICATION AS] VENDOR. [(a) To sell or lease an
automated information system under this subchapter to a state agency, a vendor must
apply to the commission for designation as a qualified information systems vendor.
The commission shall prescribe the application process. The commission may allow
or require a vendor to apply on-line.
[(b)]iiAt a minimum, a catalog information systems vendor must [the
commission shall require an applicant to submit]:
(1)iimaintain an Internet catalog [a catalogue] containing each product and
service eligible for purchase by a state agency, including for each product or service:
(A)iia description;
(B)iithe list price; and
(C)iithe price to a state agency;
(2)iimaintain a maintenance, repair, and support plan for each eligible product or service;
(3)iiprovide on request proof of the applicant's financial resources and ability to perform; and
(4)iiprovide a guarantee that the vendor will make available equivalent replacement parts for a product sold to the state until at least the third anniversary of the date the product is discontinued.
SECTIONi5E.14.iiSection 2157.063(a), Government Code, is amended to read as follows:
(a)iiIf a purchase or lease is the best value available and is in the state's best
interest, a state agency may under this subchapter purchase or lease an automated
information system directly from a catalog [qualified] information systems vendor and
may negotiate price and additional terms and conditions to be included in a contract
relating to the purchase or lease.
SECTIONi5E.15.iiSection 2157.066, Government Code, is amended by amending Subsections (a), (b), and (f) and adding Subsection (g) to read as follows:
(a)iiA catalog [vendor designated by the commission as a qualified] information
systems vendor shall publish and maintain a catalog [catalogue] described by Section
2157.062(1) [2157.062(b)(1)] in the manner required by the commission.
(b)iiThe vendor shall revise the catalog [catalogue] as necessary in the manner
required by the commission.
(f)iiThe commission may audit a catalog [qualified] information systems
vendor's catalog [approved catalogue] for compliance with rules adopted under
Subsection (g) [(c)].
(g)iiThe commission shall adopt rules that specify the requirements for a catalog information systems vendor's maintenance of Internet catalogs, including:
(1)iiavailability;
(2)iiformat; and
(3)iiother relevant requirements.
SECTIONi5E.16.iiSection 2157.067(a), Government Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3569
(a)iiThe commission shall make the catalog [catalogue] purchasing procedure
available to a local government that qualifies for cooperative purchasing under
Sections 271.082 and 271.083, Local Government Code.
SECTIONi5E.17.iiSection 2157.068(b), Government Code, is amended to read as follows:
(b)iiThe department shall negotiate with catalog [qualified] information systems
vendors to attempt to obtain a favorable price for all of state government on licenses
for commodity software items, based on the aggregate volume of purchases expected
to be made by the state. The terms and conditions of a license agreement between a
vendor and the department under this section may not be less favorable to the state
than the terms of similar license agreements between the vendor and retail
distributors.
SECTIONi5E.18.iiChapter 2254, Government Code, is amended by adding Subchapter D to read as follows:
SUBCHAPTER D. OUTSIDE LEGAL SERVICES
Sec.i2254.151.iiDEFINITION. In this subchapter, "state agency" means a department, commission, board, authority, office, or other agency in the executive branch of state government created by the state constitution or a state statute.
Sec.i2254.152.iiAPPLICABILITY. This subchapter does not apply to a contingent fee contract for legal services.
Sec.i2254.153.iiCONTRACTS FOR LEGAL SERVICES AUTHORIZED. Subject to Section 402.0212, a state agency may contract for outside legal services.
Sec.i2254.154.iiATTORNEY GENERAL; COMPETITIVE PROCUREMENT. The attorney general may require state agencies to obtain outside legal services through a competitive procurement process, under conditions prescribed by the attorney general.
SECTIONi5E.19.iiSection 2262.001, Government Code, is amended by adding Subdivision (1-a) to read as follows:
(1-a)ii"Commission" means the Texas Building and Procurement Commission.
SECTIONi5E.20.iiSections 2262.051(a) and (b), Government Code, are amended to read as follows:
(a)iiIn consultation with the attorney general [Texas Building and Procurement
Commission], the Department of Information Resources, the comptroller, and the state
auditor, the commission [attorney general] shall develop or [and] periodically update a
contract management guide for use by state agencies.
(b)iiThe commission [attorney general] may adopt rules necessary to develop or
update the guide.
SECTIONi5E.21.iiSection 2262.052(b), Government Code, is amended to read as follows:
(b)iiThe state auditor shall:
(1)iiperiodically monitor compliance with this section;
(2)iireport any noncompliance to:
(A)iithe governor;
(B)iithe lieutenant governor;
(C)iithe speaker of the house of representatives; and
3570 78th Legislature — Regular Session 82nd Day
(D)iithe team; and
(3)iiassist, in coordination with the commission [attorney general] and the
comptroller, a noncomplying state agency to comply with this section.
SECTIONi5E.22.iiSection 2262.053(a), Government Code, is amended to read as follows:
(a)iiIn coordination with the [Texas Building and Procurement Commission, the]
comptroller, [and the] Department of Information Resources, and [the] state auditor,
the commission shall develop or administer a training program for contract managers.
SECTIONi5E.23.iiSection 2262.054, Government Code, is amended to read as follows:
Sec.i2262.054.iiPUBLIC COMMENT. The commission [attorney general] by
rule may establish procedures by which each state agency is required to invite public
comment by publishing the proposed technical specifications for major contracts on
the Internet through the information service known as the Texas Marketplace or
through a suitable successor information service. The guide must define "technical
specifications."
SECTIONi5E.24.iiSection 2262.101, Government Code, is amended to read as follows:
Sec.i2262.101.iiCREATION; DUTIES. The Contract Advisory Team is created to assist state agencies in improving contract management practices by:
(1)iireviewing the solicitation of major contracts by state agencies;
(2)iireviewing any findings or recommendations made by the state auditor, including those made under Section 2262.052(b), regarding a state agency's compliance with the contract management guide; and
(3)iiproviding recommendations to the commission regarding:
(A)ii[the attorney general regarding] the development of the contract
management guide; and
(B)ii[the state auditor regarding] the training under Section 2262.053.
SECTIONi5E.25.iiSections 2155.078(n), 2155.142, 2155.144, 2155.1441, 2157.001(2), 2157.064, 2157.065, 2157.066(c) and (d), and 2261.001(e), Government Code, are repealed.
SECTIONi5E.26.iiThe changes in law made by this article to Section 2155.141, Government Code, apply only to a purchase made on or after the effective date of this article. A purchase made before the effective date of this article is covered by the law in effect when the purchase was made, and the former law is continued in effect for that purpose.
SECTIONi5E.27.ii(a) In this section, "commission" means the Texas Building and Procurement Commission.
(b)iiNot later than February 1, 2004:
(1)iithe attorney general and state auditor shall complete the transfer of powers and duties to the commission under Chapter 2262, Government Code, as amended by this Act;
(2)iia rule or form adopted by the attorney general or state auditor under Chapter 2262, Government Code, is a rule or form of the commission and remains in effect until changed by the commission;
Friday, May 30, 2003 SENATE JOURNAL 3571
(3)iithe commission assumes, without a change in status, the position of the attorney general or state auditor with respect to any matter regarding which the duties of the attorney general or state auditor under Chapter 2262, Government Code, have been transferred to the commission;
(4)iiall property, including records, and rights and obligations of the attorney general and state auditor related to those entities' express duties under Chapter 2262, Government Code, are transferred to the commission; and
(5)iiall funds appropriated by the legislature to the attorney general and state auditor related to those entities' express powers and duties under Chapter 2262, Government Code, are transferred to the commission.
SECTIONi5E.28.iiSection 2175.061, Government Code, is amended by adding Subsection (c) to read as follows:
(c)iiThe commission may by rule determine the best method of disposal for surplus and salvage property of the state under this chapter.
SECTIONi5E.29.iiSection 2175.134(a), Government Code, is amended to read as follows:
(a)iiProceeds from the sale of surplus or salvage property, less the cost of
advertising the sale, the cost of selling the surplus or salvage property, including the
cost of auctioneer services, and the amount of the fee collected under Section
2175.131, shall be deposited to the credit of the general revenue fund of the state
treasury [appropriate appropriation item of the state agency for which the sale was
made].
SECTIONi5E.30.iiSection 2175.182(a), Government Code, is amended to read as follows:
(a)iiThe commission is responsible for the disposal of surplus or salvage property
under this subchapter. The commission may take physical possession of the property.
[A state agency maintains ownership of property throughout the disposal process.]
SECTIONi5E.31.iiSection 2175.185(b), Government Code, is amended to read as follows:
(b)iiOn receiving notice under this section, the comptroller shall, if necessary, [:
[(1)iidebit and credit the proper appropriations; and
[(2)]iiadjust state property accounting records.
SECTIONi5E.32.iiSection 2175.191(a), Government Code, is amended to read as follows:
(a)iiProceeds from the sale of surplus or salvage property, less the cost of
advertising the sale, the cost of selling the surplus or salvage property, including the
cost of auctioneer services, and the amount of the fee collected under Section
2175.188, shall be deposited to the credit of the general revenue fund of the state
treasury [appropriate appropriation item of the state agency for which the sale was
made].
SECTIONi5E.33.iiSection 2175.303, Government Code, is amended to read as follows:
Sec.i2175.303.iiEXCEPTION FOR CERTAIN PROPERTY [PRODUCTS]. This
chapter does not apply to disposition of:
(1)iia product or by-product of research, forestry, agriculture, livestock, or an
industrial enterprise; [or]
3572 78th Legislature — Regular Session 82nd Day
(2)iicertain recyclable materials, including paper, cardboard, aluminum cans, plastics, glass, one-use pallets, used tires, used oil, and scrap metal, when the disposition is not in the best interest of the state or economically feasible;
(3)iiproperty acquired by a state agency with money from the state highway fund; or
(4)iiproperty given or granted to a state agency.
SECTIONi5E.34.iiSection 2175.361, Government Code, is amended to read as follows:
Sec.i2175.361.iiDEFINITIONS. In this subchapter:
(1)ii"Federal act" means the Federal Property and Administrative Services
Act of 1949 (40 U.S.C. Section 541 et seq. [484]), as amended, or any other federal
law providing for the disposal of federal surplus property.
(2)ii"Federal property" means federal surplus property acquired:
(A)iiby the commission or under the commission's jurisdiction under this subchapter; and
(B)iiunder 40 U.S.C. Section 483c, 549, or 550, or under any other
federal law providing for the disposal [Section 484(j) or (k)] of [the] federal surplus
property [act]. [The term includes federal real property acquired under Section 484(k)
of the federal act.]
SECTIONi5E.35.iiSection 2175.362(a), Government Code, is amended to read as follows:
(a)iiThe commission is the designated state agency under 40 U.S.C. Section 549
and any other federal law providing for the disposal [484(j)] of [the] federal surplus
property [act].
SECTIONi5E.36.iiSection 2175.364, Government Code, is amended to read as follows:
Sec.i2175.364.iiCOMMISSION ASSISTANCE IN PROCUREMENT AND USE OF PROPERTY. The commission may:
(1)iidisseminate information and assist a potential applicant regarding the availability of federal real property;
(2)iiassist in the processing of an application for acquisition of federal real
property and related personal property under 40 U.S.C. Section 550 or any other
federal law providing for the disposal [484(k)] of [the] federal surplus property [act];
(3)iiact as an information clearinghouse for an entity that may be eligible to acquire federal property and, as necessary, assist the entity to obtain federal property;
(4)iiassist in assuring use of the property; and
(5)iiengage in an activity relating to the use of federal property by another state agency, institution, or organization engaging in or receiving assistance under a federal program.
SECTIONi5E.37.iiSection 2175.367, Government Code, is amended to read as follows:
Sec.i2175.367.iiCONTRACTS. The commission may enter into an agreement, including:
(1)iia cooperative agreement with a federal agency under 40 U.S.C.iSection
549 or any other federal law providing for the disposal [484(n)] of [the] federal
surplus property [act];
Friday, May 30, 2003 SENATE JOURNAL 3573
(2)iian agreement with a state agency for surplus property of a state agency that will promote the administration of the commission's functions under this subchapter; or
(3)iian agreement with a group or association of state agencies for surplus property that will promote the administration of the commission's functions under this subchapter.
SECTIONi5E.38.iiSections 2175.134(b) and 2175.191(b), Government Code, are repealed.
SECTIONi5E.39.iiThis article applies only to surplus and salvage property of the state sold on or after September 1, 2003.
SECTIONi5E.40.iiSection 2166.2531(d), Government Code, is amended to read as follows:
(d)iiThe commission shall prepare a request for qualifications that includes
general information on the project site, project scope, [budget,] special systems,
selection criteria, and other information that may assist potential design-build firms in
submitting proposals for the project. The commission shall also prepare a design
criteria package that includes more detailed information on the project. If the
preparation of the design criteria package requires engineering or architectural
services that constitute the practice of engineering within the meaning of The Texas
Engineering Practice Act (Article 3271a, Vernon's Texas Civil Statutes) or the
practice of architecture within the meaning of Chapter 478, Acts of the 45th
Legislature, Regular Session, 1937 (Article 249a, Vernon's Texas Civil Statutes),
those services shall be provided in accordance with the applicable law.
SECTIONi5E.41.iiSections 2166.2532(e) and (g), Government Code, are amended to read as follows:
(e)iiThe commission shall select the construction manager-at-risk in either a
one-step or two-step process. The commission shall prepare a request for proposals, in
the case of a one-step process, or a request for qualifications, in the case of a two-step
process, that includes general information on the project site, project scope, schedule,
selection criteria, [estimated budget,] and the time and place for receipt of proposals
or qualifications, as applicable; a statement as to whether the selection process is a
one-step or two-step process; and other information that may assist the commission in
its selection of a construction manager-at-risk. The commission shall state the
selection criteria in the request for proposals or qualifications, as applicable. The
selection criteria may include the offeror's experience, past performance, safety
record, proposed personnel and methodology, and other appropriate factors that
demonstrate the capability of the construction manager-at-risk. If a one-step process is
used, the commission may request, as part of the offeror's proposal, proposed fees and
prices for fulfilling the general conditions. If a two-step process is used, the
commission may not request fees or prices in step one. In step two, the commission
may request that five or fewer offerors, selected solely on the basis of qualifications,
provide additional information, including the construction manager-at-risk's proposed
fee and its price for fulfilling the general conditions.
(g)iiAt each step, the commission shall receive, publicly open, and read aloud the
names of the offerors. [At the appropriate step, the commission shall also read aloud
the fees and prices, if any, stated in each proposal as the proposal is opened.] Within
3574 78th Legislature — Regular Session 82nd Day
SECTIONi5E.42.iiSections 2166.2533(d) and (f), Government Code, are amended to read as follows:
(d)iiThe commission shall prepare a request for competitive sealed proposals that
includes construction documents, selection criteria, [estimated budget,] project scope,
schedule, and other information that contractors may require to respond to the request.
The commission shall state in the request for proposals all of the selection criteria that
will be used in selecting the successful offeror.
(f)iiThe commission shall receive, publicly open, and read aloud the names of
the offerors [and, if any are required to be stated, all prices stated in each proposal].
Within 45 days after the date of opening the proposals, the commission shall evaluate
and rank each proposal submitted in relation to the published selection criteria.
SECTIONi5E.43.iiSubchapter F, Chapter 2166, Government Code, is amended by adding Section 2166.260 to read as follows:
Sec.i2166.260.iiAPPROVAL OF CERTAIN EXPENDITURES REQUIRED. A state agency may not spend more than the amount authorized for the cost of a project unless the governor and the Legislative Budget Board approve the expenditure. Once the cost of a project reaches the amount authorized for the project, each change to approved project plans must be approved by the governor and the Legislative Budget Board.
SECTIONi5E.44.iiSection 2166.305(b), Government Code, is amended to read as follows:
(b)iiA committee appointed by the commission shall perform the review. The committee consists of:
(1)iithe director of facilities construction and space management appointed
under Section 2152.104, who serves [ex officio] as the presiding officer of the
committee [and who votes only in case of a tie];
(2)iiseven individuals appointed by the commission, one each from the lists of nominees submitted respectively by the:
(A)iipresident of the Texas Society of Architects;
(B)iipresident of the Texas Society of Professional Engineers;
(C)iipresiding officer of the Executive Council of the Texas Associated General Contractors Chapters;
(D)iiexecutive secretary of the Mechanical Contractors Associations of Texas, Incorporated;
(E)iiexecutive secretary of the Texas Building and Construction Trades Council;
(F)iipresident of the Associated Builders and Contractors of Texas; and
(G)iiexecutive director of the National Association of Minority Contractors, with the list composed of persons who reside in this state;
(3)iione individual appointed by the commission representing an institution of higher education, as defined by Section 61.003, Education Code;
(4)iione individual appointed by the commission representing a state agency
that has a substantial ongoing construction program; [and]
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(5)iione individual appointed by the commission representing the attorney general's office; and
(6)iione individual appointed by the commission representing the interests of historically underutilized businesses.
SECTIONi5E.45.iiSection 2166.201, Government Code, is repealed.
SECTIONi5E.46.iiThis article applies only to a Texas Building and Procurement Commission request for competitive proposals under Chapter 2166, Government Code, as amended by this article, on or after September 1, 2003.
ARTICLE 5F. WATER CONTRACTS
SECTIONi5F.01.iiSection 11.041, Water Code, is amended by amending Subsection (a) and adding Subsection (h) to read as follows:
(a)iiAny person entitled to receive or use water from any canal, ditch, flume, lateral, dam, reservoir, or lake or from any conserved or stored supply may present to the commission a written petition showing:
(1)iithat he is entitled to receive or use the water;
(2)iithat he is willing and able to pay a just and reasonable price for the water;
(3)iithat the party owning or controlling the water supply has water not
contracted to others and available for the petitioner's use; [and]
(4)iithat the party owning or controlling the water supply fails or refuses to supply the available water to the petitioner, or that the price or rental demanded for the available water is not reasonable and just or is discriminatory; and
(5)iithat the petitioner has not entered into a contract with the party owning or controlling the water supply.
(h)iiNotwithstanding any other law, the commission may not amend, interpret, impair, or modify a written contract for the wholesale provision of water for any purpose provided by this chapter or Chapter 12 or 13.
SECTIONi5F.02.iiSection 12.013, Water Code, is amended by adding Subsection (i) to read as follows:
(i)iiNotwithstanding any other law, the commission may not amend, interpret, impair, or modify a written contract for the wholesale provision of raw or treated water for any purpose provided by Chapter 11, this chapter, or Chapter 13.
SECTIONi5F.03.iiSection 13.041, Water Code, is amended by adding Subsection (h) to read as follows:
(h)iiNotwithstanding any other law, the commission may not amend, interpret, impair, or modify a written contract for the wholesale provision of water for any purpose provided by Chapter 11 or 12 or this chapter.
SECTIONi5F.04.iiThe changes in law made by this article apply only to a contract executed on or after the effective date of this article. A contract executed before the effective date of this article is governed by the law in effect on the date the contract was executed, and the former law is continued in effect for that purpose.
ARTICLE 5G. TRAVEL SERVICES CONTRACTS
SECTIONi5G.01.iiSections 2171.052(b) and (c), Government Code, are amended to read as follows:
3576 78th Legislature — Regular Session 82nd Day
(b)iiThe central travel office may [shall] negotiate contracts with private travel
agents, with travel and transportation providers, and with credit card companies that
provide travel services and other benefits to the state. The central travel office may
[shall] negotiate with commercial lodging establishments to obtain the most
cost-effective rates possible for state employees traveling on state business.
(c)iiThe commission may [shall] make contracts with travel agents that meet
certain reasonable requirements prescribed by the central travel office, [allowing
contracts to provide travel services by as many private travel agents as possible] with
preference given to resident entities of this state.
SECTIONi5G.02.iiSection 2171.052(e), Government Code, is repealed.
ARTICLE 5H. ADMINISTRATION OF TEXAS BUILDING AND
PROCUREMENT COMMISSION
SECTIONi5H.01.iiSection 2152.051, Government Code, is amended to read as follows:
Sec.i2152.051.iiCOMPOSITION OF COMMISSION. (a) The commission consists of five members appointed by the governor.
(b)iiSubsection (a) governs the composition of the commission after January 31,
2007. On or before that date, this subsection governs the composition of the
commission. The commission consists of seven members, of whom[:
[(1)]iithree members are appointed by the governor,[;
[(2)]iitwo additional members are appointed by the governor from a list of
nominees submitted by the speaker of the house of representatives,[;] and
[(3)]iitwo members are appointed by the lieutenant governor. The members
serving on the commission immediately before the effective date of the Act of the
78th Legislature, Regular Session, 2003, that amended this section and added this
subsection are entitled to continue to serve on the commission for the terms for which
they were appointed if they are otherwise qualified for their positions.
Notwithstanding Section 2152.057, for the period in which the commission consists
of seven members under this subsection, two or three members' terms expire on
January 31 of each odd-numbered year. If, on or before January 31, 2007, the term of
any position on the commission expires or a vacancy is created in any position on the
commission, the governor shall appoint a person to fill the position. However, the two
positions on the commission that are filled by appointment by the governor from a list
submitted by the speaker are abolished on the expiration of the positions' terms on
January 31, 2007. This subsection expires September 1, 2009.
[(b)iiIn making an appointment under Subsection (a)(2), the governor may reject
one or more of the nominees on a list submitted by the speaker of the house of
representatives and request a new list of different nominees.]
SECTIONi5H.02.iiSection 2152.052(b), Government Code, is amended to read as follows:
(b)iiIn making appointments under this section, the governor [and lieutenant
governor] shall attempt to appoint women and members of different minority groups,
including African Americans, Hispanic Americans, Native Americans, and Asian
Americans.
SECTIONi5H.03.iiSection 2152.057, Government Code, is amended to read as follows:
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Sec.i2152.057.iiTERMS. Commission members serve staggered six-year terms
with one or two [or three] members' terms expiring January 31 of each odd-numbered
year.
SECTIONi5H.04.iiSection 2152.058(b), Government Code, is amended to read as follows:
(b)iiThe commission shall meet at least quarterly [once each month]. The
commission may meet at other times at the call of the presiding officer or as provided
by the commission's rules.
SECTIONi5H.05.iiSubchapter B, Chapter 2152, Government Code, is amended by adding Section 2152.065 to read as follows:
Sec.i2152.065.iiREPRESENTATION ON BOARD OR COMMITTEE. If the commission must be represented on a board or committee, the executive director or the executive director's designee shall serve as the commission's representative on the board or committee unless the presiding officer of the commission elects to personally serve as the commission's representative or appoints a specific person to serve as the commission's representative on the board or committee.
SECTIONi5H.06.iiSection 2152.104(a), Government Code, is amended to read as follows:
(a)iiThe commission shall have an appropriate number of [three] associate
deputy directors.
SECTIONi5H.07.iiSection 2172.001(a), Government Code, is amended to read as follows:
[(a)]iiThe commission may [shall] operate a central supply store at which only
state agencies, the legislature, and legislative agencies may obtain small supply items.
If the commission operates a central supply store, the commission shall devise an
appropriate method of billing a using entity for the supplies.
SECTIONi5H.08.iiSection 2172.002(a), Government Code, is amended to read as follows:
(a)iiThe commission may [shall] maintain a facility for repairing office machines
and may [shall] offer repair services to the following entities located in Austin:
(1)iistate agencies;
(2)iithe legislature; and
(3)iilegislative agencies.
SECTIONi5H.09.iiSection 2172.001(b), Government Code, is repealed.
[ARTICLE 5I. RESERVED]
ARTICLE 5J. STATE AGENCY LETTERHEAD
SECTIONi5J.01.iiSubchapter C, Chapter 2054, Government Code, is amended by adding Section 2054.062 to read as follows:
Sec.i2054.062.iiSTATE AGENCY LETTERHEAD. The department shall create a program that automatically generates letterhead for a state agency on an agency computer.
3578 78th Legislature — Regular Session 82nd Day
[PART 6. RESERVED]
PART 7. PERSONNEL AND HUMAN RESOURCES
ARTICLE 7A. RETIREMENT SYSTEM CREDIT ESTABLISHED
BY STATE EMPLOYEES
SECTIONi7A.01.iiSection 812.003, Government Code, is amended by amending Subsection (d) and adding Subsections (e) and (f) to read as follows:
(d)iiMembership in the employee class begins on the 91st day after the first day a person is employed or holds office.
(e)iiA person who is reemployed or who again holds office after withdrawing contributions under Subchapter B for previous service credited in the employee class begins membership in the employee class on the 91st day after the first day the person is reemployed or again holds office.
(f)iiNotwithstanding any other provision of law, a member may establish credit only as provided by Section 813.514 for service performed during the 90-day waiting period provided by Subsection (d) or (e).
SECTIONi7A.02.iiSubchapter F, Chapter 813, Government Code, is amended by adding Section 813.514 to read as follows:
Sec.i813.514.iiCREDIT PURCHASE OPTION FOR CERTAIN SERVICE. (a) A member may establish credit under this section in the employee class only for service performed during the 90-day waiting period provided by Section 812.003(d) or (e).
(b)iiA member may establish service credit under this section by depositing with the retirement system, for each month of service credit, the actuarial present value, at the time of deposit, of the additional standard retirement annuity benefits that would be attributable to the purchase of the service credit under this section based on rates and tables recommended by the retirement system's actuary and adopted by the board of trustees.
(c)iiAfter a member makes the deposits required by this section, the retirement system shall grant the member one month of equivalent membership service credit for each month of credit approved. A member may establish not more than three months of equivalent membership service credit under this section.
(d)iiThe retirement system shall deposit the amount of the actuarial present value of the service credit purchased in the member's individual account in the employees saving account.
(e)iiThe board of trustees may adopt rules to administer this section, including rules that impose restrictions on the application of this section as necessary to cost-effectively administer this section.
SECTIONi7A.03.iiSection 812.003, Government Code, as amended by this article, and Section 813.514, Government Code, as added by this article, apply only to a person who is first employed by or begins to hold an office of the state on or after the effective date of this article and to a former employee or office holder who has withdrawn retirement contributions under Subchapter B, Chapter 812, Government Code, and is reemployed by or begins to again hold an office of the state on or after the effective date of this article.
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ARTICLE 7B. TEXAS EMPLOYEES GROUP HEALTH BENEFIT PLAN
SECTIONi7B.01.iiSubchapter E, Chapter 1551, Insurance Code, as effective June 1, 2003, is amended by adding Section 1551.219 to read as follows:
Sec.i1551.219.iiMAIL ORDER REQUIREMENT FOR PRESCRIPTION DRUG COVERAGE PROHIBITED. The board of trustees or a health benefit plan under this chapter that provides benefits for prescription drugs may not require a participant in the group benefits program to purchase a prescription drug through a mail order program. The board or health benefit plan shall require that a participant who chooses to obtain a prescription drug through a retail pharmacy or other method other than by mail order pay a deductible, copayment, coinsurance, or other cost-sharing obligation to cover the additional cost of obtaining a prescription drug through that method rather than by mail order.
ARTICLE 7C. STATE AGENCY HUMAN RESOURCES
STAFFING AND FUNCTIONS
SECTIONi7C.01.iiSubtitle B, Title 6, Government Code, is amended by adding Chapter 670 to read as follows:
CHAPTER 670. HUMAN RESOURCES STAFFING AND FUNCTIONS
Sec.i670.001.iiDEFINITION. In this chapter, "state agency" means a department, commission, board, office, authority, council, or other governmental entity in the executive branch of government that is created by the constitution or a statute of this state and has authority not limited to a geographical portion of the state. The term does not include a university system or institution of higher education as defined by Section 61.003, Education Code.
Sec.i670.002.iiHUMAN RESOURCES STAFFING FOR LARGE STATE AGENCIES. A state agency with 500 or more full-time equivalent employees shall adjust the agency's human resources staff to achieve a human resources employee-to-staff ratio of not more than one human resources employee for every 100 staff members.
Sec.i670.003.iiHUMAN RESOURCES STAFFING FOR MEDIUM-SIZED AND SMALL STATE AGENCIES; OUTSOURCING. (a) The State Council on Competitive Government shall determine the cost-effectiveness of consolidating the human resources functions of or contracting with private entities to perform the human resources functions of state agencies that employ fewer than 500 full-time equivalent employees.
(b)iiIf the council determines that contracting with private entities is cost-effective, the council shall issue a request for proposals for vendors to perform the human resources functions of the agencies.
(c)iiThe council shall determine which human resources functions are subject to the contract and which functions the agency may select to perform itself.
(d)iiEach agency shall pay for the contracts for human resources functions out of the agency's human resources budget.
SECTIONi7C.02.ii(a) Not later than September 1, 2003, each state agency with 500 or more full-time equivalent employees shall comply with the human resources employee-to-staff ratio requirements in Section 670.002, Government Code, as added by this article.
3580 78th Legislature — Regular Session 82nd Day
(b)iiNot later than January 1, 2004, the State Council on Competitive Government shall conduct an initial feasibility study to determine the cost-effectiveness of consolidating the human resources functions of or contracting with private entities to perform human resources functions of state agencies under Section 670.003, Government Code, as added by this article.
ARTICLE 7D. INSURANCE FOR VOLUNTEER MEMBERS
OF STATE BOARDS
SECTIONi7D.01.iiSection 1551.101(c), Insurance Code, as effective June 1, 2003, is amended to read as follows:
(c)iiSubject to Section 1551.321, an [An] individual is eligible to participate in
the group benefits program as provided by Subsection (a) if the individual is
appointed, subject to confirmation by the senate, as a member of the governing body
with administrative responsibility over a statutory state agency that has statewide
jurisdiction and whose employees are covered by this chapter.
SECTIONi7D.02.iiSubchapter G, Chapter 1551, Insurance Code, as effective June 1, 2003, is amended by adding Section 1551.321 to read as follows:
Sec.i1551.321.iiSTATE CONTRIBUTION FOR CERTAIN INDIVIDUALS. (a) The state or a state agency may not make any contribution to the cost of any coverages or benefits provided under this chapter for an individual described by Section 1551.101(c) or a dependent of the individual.
(b)iiAn individual described by Section 1551.101(c) who participates in the group benefits program shall pay to the trustee, in the manner specified by the trustee, the full cost of the coverages or benefits provided to the individual or a dependent of the individual.
SECTIONi7D.03.ii(a) The change in law made by this article by the addition of Section 1551.321, Insurance Code, applies only to group coverages provided under the group benefits program established under Chapter 1551, Insurance Code, on and after September 1, 2003.
(b)iiNot later than the 30th day after the effective date of Section 1551.321, Insurance Code, as added by this article, the Employees Retirement System of Texas shall notify each individual eligible to participate in the group benefits program under Chapter 1551, Insurance Code, in accordance with Section 1551.101(c), Insurance Code, of the applicable requirements of Section 1551.321, Insurance Code.
ARTICLE 7E. AGENCY STAFFING AND PRODUCTIVITY
SECTIONi7E.01.iiSubchapter K, Chapter 659, Government Code, is amended by adding Section 659.262 to read as follows:
Sec.i659.262.iiADDITIONAL COMPENSATION FOR CERTAIN CLASSIFIED STATE EMPLOYEES. (a) In this section, "state agency" means an agency of any branch of state government that employs individuals who are classified under Chapter 654.
(b)iiTo enhance the recruitment of competent personnel for certain classified employee positions, a state agency may provide to a state employee, at the time of the employee's hiring for a classified position, additional compensation in the form of a one-time recruitment payment not to exceed $5,000. If the employee discontinues employment with the state agency for any reason less than three months after the date of receiving the recruitment payment, the employee shall refund to the state agency
Friday, May 30, 2003 SENATE JOURNAL 3581
(1)iisubtracting from 12 months the number of complete calendar months the employee worked after the date of receiving the recruitment payment;
(2)iidividing the number of months computed under Subdivision (1) by 12 months; and
(3)iimultiplying the fraction computed under Subdivision (2) by the amount of the recruitment payment.
(c)iiTo enhance the retention of employees who are employed in certain classified positions that are identified by the chief administrator of a state agency as essential for the state agency's operations, a state agency may enter into a deferred compensation contract with a classified employee to provide to the employee a one-time additional compensation payment not to exceed $5,000 to be added to the employee's salary payment the month after the conclusion of the 12-month period of service under the deferred compensation contract.
(d)iiTo be eligible to enter into a contract for deferred compensation under Subsection (c), a state employee must have already completed at least 12 months of service in a classified position.
(e)iiThe chief administrator of a state agency shall determine whether additional compensation is necessary under this section on a case-by-case basis, considering:
(1)iithe criticality of the employee position in the operations of the state agency;
(2)iievidence of high turnover rates among employees filling the position or an extended period during which the position is or has in the past been vacant;
(3)iievidence of a shortage of employees qualified to fill the position or a shortage of qualified applicants; and
(4)iiother relevant factors.
(f)iiBefore an agency provides or enters into a contract to provide additional compensation to an employee under this section, the chief administrator of the state agency must certify to the comptroller in writing the reasons why the additional compensation is necessary.
(g)iiAdditional compensation paid to an employee under this section is specifically exempted from any limitation on salary or salary increases prescribed by this chapter.
SECTIONi7E.02.iiSubtitle B, Title 6, Government Code, is amended by adding Chapter 670 to read as follows:
CHAPTER 670.iiMANAGEMENT PERFORMANCE PROGRAM
Sec.i670.001.iiDEFINITION. In this chapter, "state agency" means an agency in the executive branch of state government.
Sec.i670.002.iiUPPER MANAGEMENT PERFORMANCE AGREEMENTS.ii(a) The governing body of a state agency shall develop and enter into agreements with employees of the agency who serve in upper management positions, including the chief executive or chief administrator of the agency.
(b)iiAn agreement under this section shall:
3582 78th Legislature — Regular Session 82nd Day
(1)iicommunicate to the upper management employee the agency's overall organizational goals and specific strategic aims;
(2)iiidentify the specific performance measures and targets applicable to the unique programs for which the upper management employee is responsible; and
(3)iiexplain the procedures that will be used by the agency to hold the upper management employee accountable for performance under the agreement, including annual performance review procedures.
SECTIONi7E.03.iiEffective September 1, 2003, Section 651.004, Government Code, is amended by adding Subsections (c-1) and (d) to read as follows:
(c-1)iiA state agency in the executive branch of state government that employs more than 100 full-time equivalent employees may not, after August 31, 2004, employ more than one full-time equivalent employee in a management position for every eight full-time equivalent employees that the agency employs in nonmanagerial staff positions. This subsection expires September 1, 2005.
(d)iiA state agency that believes that the minimum management-to-staff ratios required by this section are inappropriate for that agency may appeal to the governor. The governor's decision regarding management-to-staff ratios is final. The governor by rule shall adopt appeal procedures.
SECTIONi7E.04.iiEffective September 1, 2004, Section 651.004, Government Code, is amended by adding Subsection (c-2) to read as follows:
(c-2)iiA state agency in the executive branch of state government that employs more than 100 full-time equivalent employees may not, after August 31, 2005, employ more than one full-time equivalent employee in a management position for every nine full-time equivalent employees that the agency employs in nonmanagerial staff positions. This subsection expires September 1, 2006.
SECTIONi7E.05.iiEffective September 1, 2005, Section 651.004, Government Code, is amended by adding Subsection (c-3) to read as follows:
(c-3)iiA state agency in the executive branch of state government that employs more than 100 full-time equivalent employees may not, after August 31, 2006, employ more than one full-time equivalent employee in a management position for every 10 full-time equivalent employees that the agency employs in nonmanagerial staff positions. This subsection expires September 1, 2007.
SECTIONi7E.06.ii(a) Effective September 1, 2006, Section 651.004, Government Code, is amended by adding Subsection (c) to read as follows:
(c)iiA state agency in the executive branch of state government that employs more than 100 full-time equivalent employees may not employ more than one full-time equivalent employee in a management position for every 11 full-time equivalent employees that the agency employs in nonmanagerial staff positions.
(b)iiA state agency in the executive branch of government shall achieve the management-to-staff ratio required by Section 651.004(c), Government Code, as added by this section, not later than August 31, 2007.
SECTIONi7E.07.iiSection 656.048(b), Government Code, is repealed.
PART 8. ENVIRONMENT
ARTICLE 8A. NONADJUDICATIVE NOTICE AND HEARING
SECTIONi8A.01.iiChapter 5, Water Code, is amended by adding Subchapter S to read as follows:
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SUBCHAPTER S. NONADJUDICATIVE NOTICE AND HEARING
Sec.i5.851.iiAPPLICABILITY. This subchapter provides procedures for providing public notice, opportunity for public comment, and an opportunity for a nonadjudicative hearing regarding commission actions relating to certain permits issued under Chapter 26 or 27 or under Chapter 361 or 382, Health and Safety Code.
Sec.i5.852.iiPRELIMINARY DECISION. (a) The executive director shall conduct a technical review of and issue a preliminary decision on an application for a permit.
(b)iiNotice of the preliminary decision must be provided as prescribed by Section 5.854.
(c)iiThe applicant shall make available for review a copy of the application and preliminary decision at a public place in the county in which the facility is located or proposed to be located.
Sec.i5.853.iiNOTICE CONTENT; PUBLIC COMMENT PERIOD. (a) The commission by rule shall establish:
(1)iithe form, content, and timing of the notice; and
(2)iithe duration of the public comment period.
(b)iiNotice must be provided as follows:
(1)iithe chief clerk of the commission shall mail notice to:
(A)iithe state senator and representative who represent the general area in which the facility is located or proposed to be located; and
(B)iiany other person designated by commission rule; and
(2)iithe applicant shall publish notice in a newspaper of general circulation in the county in which the facility is located or proposed to be located.
(c)iiThe notice must include:
(1)iithe permit application number;
(2)iithe applicant's name and address;
(3)iithe location of the facility and the nature of the proposed activity at the facility;
(4)iithe location at which copies of the application and preliminary decision are available for review;
(5)iia description of any procedural rights of the public; and
(6)iia 30-day public comment period, except as otherwise provided by commission rule.
Sec.i5.854.iiNONADJUDICATIVE HEARING. (a) A hearing on an application for issuance, amendment, modification, or renewal of a permit subject to this subchapter must be conducted under this section. Chapter 2001, Government Code, does not apply to a hearing under this subchapter.
(b)iiThe executive director shall hold a nonadjudicative hearing for an application if, after the close of the public comment period, there is significant public interest in the application.
(c)iiAt the hearing, any person may submit an oral or written statement regarding the application for the permit. The public comment period extends to the close of the hearing.
3584 78th Legislature — Regular Session 82nd Day
(d)iiIn determining whether to issue the permit and what conditions should be included if a permit is issued, the executive director shall consider all comments received during the public comment period and at the hearing.
Sec.i5.855.iiRESPONSE TO PUBLIC COMMENTS; PREPARATION OF FACT SHEET. (a) If necessary to satisfy a requirement for federal authorization of a state permit program, the executive director, in a manner consistent with commission rule, shall file with the chief clerk of the commission a response to each significant written public comment on the preliminary decision filed during the public comment period.
(b)iiFor an application that is not subject to Subsection (a), the executive director shall submit to the chief clerk of the commission a statement that briefly describes the principal facts and significant legal and policy issues related to the application.
ARTICLE 8B. PUBLIC PARTICIPATION
SECTIONi8B.01.iiSubchapter D, Chapter 5, Water Code, is amended by adding Sections 5.132 and 5.133 to read as follows:
Sec.i5.132.iiGENERAL PERMITS. (a) The commission may issue a general permit to authorize a regulated activity for a category of entities if the commission finds that:
(1)iithe types of operations of the entities are the same or substantially similar;
(2)iithe activity is more appropriately regulated under a general permit than under an individual permit;
(3)iithe general permit is enforceable;
(4)iithe commission can adequately monitor compliance with the terms of the general permit; and
(5)iithe general permit does not conflict with any requirement to maintain federal program authorization.
(b)iiThe commission shall publish notice of a proposed general permit in the Texas Register and in a newspaper of general circulation in the area affected by the activity that is the subject of the proposed general permit. For a statewide general permit, the commission shall designate one or more newspapers of statewide or regional circulation and shall publish notice of the proposed statewide general permit in each designated newspaper in addition to the Texas Register. The notice shall invite written comments and be published not later than the 30th day before the commission issues the general permit.
(c)iiThe commission may hold a public meeting to provide an additional opportunity for public comment. The commission shall give notice of a public meeting as provided by Subsection (b) not later than the 30th day before the date of the meeting.
(d)iiIf the commission receives public comment relating to issuance of a general permit, the commission may issue the general permit only after responding in writing to the comments. The commission shall issue a written response to comments on the permit at the same time the commission issues or denies the permit. The commission shall make its response available to the public and shall mail its response to each person who made a comment.
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(e)iiA general permit must include the procedures for obtaining authorization under the terms of the general permit.
(f)iiThe commission by rule shall establish procedures for the issuance, amendment, renewal, suspension, revocation, or cancellation of a general permit.
(g)iiThe commission may impose a reasonable and necessary fee for authorization to use general permits under this section.
(h)iiThe issuance, amendment, renewal, suspension, revocation, or cancellation of a general permit or of authorization to use a general permit is not subject to Subchapters C-F, Chapter 2001, Government Code.
(i)iiThe commission may adopt rules as necessary to implement and administer this section.
(j)iiThe commission may delegate to the executive director the authority to issue, amend, renew, suspend, revoke, or cancel a general permit or an authorization to use a general permit.
Sec.i5.133.iiTIME LIMIT FOR ISSUANCE OR DENIAL OF PERMITS. (a) Except as provided in Subsection (b), all permit decisions shall be made within 180 days of the date of the receipt of the permit application or application amendment or the date of the determination of administrative completeness, whichever date is later.
(b)iiThis section does not apply to a permit issued under a federally delegated or approved program unless allowed under that program.
SECTIONi8B.02.iiSection 5.551, Water Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:
(a)iiThis subchapter establishes procedures for providing public notice, an
opportunity for public comment, and a contested case [an opportunity for public]
hearing under [Subchapters C-H,] Chapter 2001, Government Code, regarding
commission actions relating to a permit issued under Chapter 26 or 27 [of this code]
or under Chapter 361 or 382, Health and Safety Code. This subchapter is procedural
and does not expand or restrict the types of commission actions for which public
notice, an opportunity for public comment, and a contested case [an opportunity for
public] hearing are provided under Chapter 26 or 27 [of this code] or Chapter 361 or
382, Health and Safety Code.
(d)iiThe procedures established by this subchapter apply to permits subject to a contested case hearing and supersede any other procedural requirements in Chapter 26 or 27 and under Chapter 361 or 382, Health and Safety Code, relating to public notice, public comment, public meetings, and a request for a contested case hearing.
SECTIONi8B.03.iiSubchapter M, Chapter 5, Water Code, is amended by adding Section 5.5515 to read as follows:
Sec.i5.5515.iiNOTICE CONTENT; PUBLIC COMMENT PERIOD. (a) The commission by rule shall establish the form, content, and timing of the notice and the duration of the public comment period.
(b)iiNotice shall be provided by the following methods:
(1)iithe chief clerk shall mail notice to the state senator and representative who represent the general area in which the facility is located or proposed to be located and any other persons designated by commission rule; and
(2)iithe applicant shall publish notice in a newspaper of general circulation in the county in which the facility is located or proposed to be located.
3586 78th Legislature — Regular Session 82nd Day
(c)iiThe notice must include:
(1)iithe permit application number;
(2)iithe applicant's name and address;
(3)iithe location of the facility and the nature of the proposed activity;
(4)iithe location at which a copy of the application and preliminary decision is available for review and copying at a public place in the county in which the facility is located or proposed to be located;
(5)iia description of the procedural rights and obligations of the public; and
(6)iia 30-day public comment period unless otherwise provided by commission rule.
SECTIONi8B.04.iiThe heading to Section 5.553, Water Code, is amended to read as follows:
Sec.i5.553.iiPRELIMINARY DECISION[; NOTICE AND PUBLIC
COMMENT].
SECTIONi8B.05.iiSection 5.553, Water Code, is amended by adding Subsection (a-1) and amending Subsection (e) to read as follows:
(a-1)iiNotice of the preliminary decision must be provided in accordance with Section 5.5515.
(e)iiThe applicant shall make a copy of the application and preliminary decision available for review and copying at a public place in the county in which the facility is located or proposed to be located.
SECTIONi8B.06.iiSection 5.554, Water Code, is amended to read as follows:
Sec.i5.554.iiPUBLIC MEETING. (a) During the public comment period, the executive director may hold one or more public meetings in the county in which the facility is located or proposed to be located. The executive director shall hold a public meeting:
(1)iion the request of a member of the legislature who represents the general area in which the facility is located or proposed to be located; or
(2)iiif the executive director determines that there is substantial public interest in the proposed activity.
(b)iiThe applicant shall publish notice of a public meeting in a newspaper of general circulation in the county in which the facility is located or proposed to be located at least 30 days before the public meeting unless otherwise provided by commission rule.
SECTIONi8B.07.iiSection 5.555, Water Code, is amended to read as follows:
Sec.i5.555.iiRESPONSE TO PUBLIC COMMENTS; PREPARATION OF
FACT SHEET.ii(a)iiIf necessary to satisfy a requirement for federal authorization of a
state permit program, the [The] executive director, in accordance with [procedures
provided by] commission rules [rule], shall file with the chief clerk of the commission
a response to each significant written [relevant and material] public comment on the
preliminary decision filed during the public comment period.
(b)iiFor applications that are not subject to Subsection (a), the executive director
shall prepare a fact sheet that briefly describes the principal facts and significant legal
and policy issues and shall file the fact sheet with the chief clerk of the commission
[The chief clerk of the commission shall transmit the executive director's decision, the
Friday, May 30, 2003 SENATE JOURNAL 3587
[(1)iithe applicant;
[(2)iiany person who submitted comments during the public comment
period; and
[(3)iiany person who requested to be on the mailing list for the permit
action].
SECTIONi8B.08.iiThe heading to Section 5.556, Water Code, is amended to read as follows:
Sec.i5.556.iiREQUEST FOR [RECONSIDERATION OR] CONTESTED CASE
HEARING.
SECTIONi8B.09.iiSection 5.556, Water Code, is amended by amending Subsections (a), (b), (c), and (f), and by adding Subsections (d-1)-(d-9) to read as follows:
(a)iiA person may request that the executive director refer an application to the
State Office of Administrative Hearings for [commission reconsider the executive
director's decision or hold] a contested case hearing. A request must be filed with the
chief clerk of the commission during the period provided by commission rule.
(b)iiThe executive director [commission] shall act on a request during the period
provided by commission rule.
(c)iiThe executive director on receiving [commission may not grant] a request for
a contested case hearing [unless the commission determines that the request was filed]
by the applicant or by an affected person as defined by Subsections (d-1)-(d-5), shall
refer an application to the commission's office of hearings examiners [Section 5.115].
(d-1)iiFor applications under Chapter 382, Health and Safety Code, an affected person is a person who:
(1)iiresides on or owns property within one-half mile of the facility or proposed facility if the application is for a permit or permit amendment to allow emissions below the threshold for major source or major modification, or for a permit renewal; or
(2)iiresides on or owns property within one mile of the facility or proposed facility if the application is for a permit or permit amendment for a major source or major modification.
(d-2)iiFor industrial solid waste and hazardous waste applications under Chapter 361, Health and Safety Code, an affected person is a person who resides on or owns property within:
(1)iione-half mile of the facility or proposed facility if the application is for a major amendment, Class 3 modification, or renewal; or
(2)iione mile of the facility or proposed facility if the application is for a new permit.
(d-3)iiFor municipal solid waste applications under Chapter 361, Health and Safety Code, an affected person is a person who resides on or owns property within:
(1)iione-half mile of the facility or proposed facility if the application is for a major amendment or a modification that requires notice; or
3588 78th Legislature — Regular Session 82nd Day
(2)iione mile of the facility or proposed facility if the application is for a new permit.
(d-4)iiFor underground injection well applications under Chapter 27, an affected person is a person who, for a new permit, major amendment, or renewal, resides on, owns property on, or owns mineral rights:
(1)iiunderlying the facility; or
(2)iiunderlying property adjacent to the facility.
(d-5)iiFor water quality applications for a new permit, major amendment, or renewal, under Chapter 26, an affected person is a person who resides on or owns property:
(1)iiwithin one-half mile downstream of a discharge or proposed discharge;
(2)iiwithin one mile downstream of a discharge or proposed discharge if the proposed discharge is for one million gallons per day or more; or
(3)iithat is adjacent to the property used by the applicant to dispose of or land apply waste or wastewater, or adjacent to the facility or proposed facility.
(d-6)iiAn affected person must reside on or own the property specified in Subsections (d-1)-(d-5) on the date of the notice of preliminary decision.
(d-7)iiA group composed of individuals with a common interest and that is potentially affected by the application, an association that has one or more members potentially affected by the application, or a governmental entity with authority under state law over issues relating to the permit application may be an affected person. The commission by rule shall establish criteria for determining whether a group, association, or governmental entity is an affected person.
(d-8)iiA person whose hearing request is not referred to the commission's office of hearings examiners may appeal to the commission as provided by commission rule.
(d-9)iiThe commission by rule may establish criteria for the amount of increase proposed to be authorized below which a request for hearing by an affected person may be denied if the commission determines that such an increase is not expected to have a negative impact on human health or the environment.
(f)iiThis section does not preclude the executive director from referring any application for a contested case hearing and does not preclude the commission from holding a hearing if it determines that the public interest warrants doing so.
SECTIONi8B.10.iiSections 26.028(c), (d), (g), and (h), Water Code, are amended to read as follows:
(c)iiExcept as otherwise provided by this section, the commission, on the motion
of a commissioner, or on the request of the executive director or any affected person,
shall hold a contested case [public] hearing on the application for a permit, permit
amendment, or renewal of a permit.
(d)iiNotwithstanding any other provision of this chapter, the commission, at a
regular meeting without the necessity of holding a contested case [public] hearing,
may approve an application to renew or amend a permit if:
(1)iithe applicant is not applying to:
(A)iiincrease significantly the quantity of waste authorized to be discharged; or
(B)iichange materially the pattern or place of discharge;
Friday, May 30, 2003 SENATE JOURNAL 3589
(2)iithe activities to be authorized by the renewed or amended permit will maintain or improve the quality of waste authorized to be discharged;
(3)ii[for NPDES permits,] notice and the opportunity to comment and
request a nonadjudicative hearing under Subchapter S, Chapter 5, has been [public
meeting shall be] given, and a nonadjudicative hearing has been held if required under
Subchapter S, Chapter 5 [in compliance with NPDES program requirements, and the
commission shall consider and respond to all timely received and significant public
comment]; [and]
(4)iithe commission determines that an applicant's compliance history for
the preceding five years [under the method for evaluating compliance history
developed by the commission under Section 5.754] raises no issues regarding the
applicant's ability to comply with a material term of its permit; and
(5)iifor NPDES permits, the commission has considered and responded to each significant public comment that was timely received.
(g)iiAn application to renew a permit for a confined animal feeding operation
[which was issued between July 1, 1974, and December 31, 1977,] may be set for
consideration and may be acted on by the commission at a regular meeting without
the necessity of holding a contested case [public] hearing if the applicant does not
seek to discharge into or adjacent to water in the state and does not seek to change
materially the pattern or place of disposal.
(h)iiFor the purposes of Subsection (c), the commission may act on the
application without holding a contested case [public] hearing if all of the following
conditions are met:
(1)iinot less than 30 days before the date of action on the application by the commission, the applicant has published the commission's notice of the application at least once in a newspaper regularly published or circulated within each county where the proposed facility or discharge is located and in each county affected by the discharge;
(2)iinot less than 30 days before the date of action on the application by the
commission, the applicant has served or mailed the commission's notice of the
application to persons who in the judgment of the commission may be affected,
including the county judges as required by Subsection (b). As part of the [his]
application the applicant shall submit an affidavit which lists the names and addresses
of the persons who may be affected by the application and includes the source of the
list;
(3)iiwithin 30 days after the date of the newspaper publication of the
commission's notice, neither a commissioner, the executive director, nor an affected
person who objects to the application has requested a contested case [public] hearing.
SECTIONi8B.11.iiSection 361.0666, Health and Safety Code, is amended by adding Subsection (f) to read as follows:
(f)iiA public meeting is not required for a new municipal solid waste facility that is authorized through registration.
SECTIONi8B.12.iiSection 361.088(e), Health and Safety Code, is amended to read as follows:
3590 78th Legislature — Regular Session 82nd Day
(e)iiThis subsection applies to an application for a new permit or permit
modification or amendment for post-closure care or corrective action at a solid waste
management facility. After complying with Sections 5.5515-5.555 [5.552-5.555],
Water Code, the commission, without providing an opportunity for a contested case
hearing, may act on an application described by this subsection if notice and
opportunity to request a nonadjudicative hearing under Subchapter S, Chapter 5,
Water Code, has been given, to renew a permit for:
(1)iistorage of hazardous waste in containers, tanks, or other closed vessels if the waste:
(A)iiwas generated on-site; and
(B)iidoes not include waste generated from other waste transported to
the site; [and]
(2)iiprocessing of hazardous waste if:
(A)iithe waste was generated on-site;
(B)iithe waste does not include waste generated from other waste transported to the site; and
(C)iithe processing does not include thermal processing; and
(3)iitreatment, storage, or disposal of solid waste, including actions relating to post-closure or corrective action, if the renewal application does not include any changes to authorization provided by the existing permit.
SECTIONi8B.13.iiSection 361.121(c), Health and Safety Code, is amended to read as follows:
(c)iiThe notice and hearing provisions of Subchapter S [M], Chapter 5, Water
Code, [as added by Chapter 1350, Acts of the 76th Legislature, Regular Session,
1999,] apply to an application under this section for a permit, a permit amendment, or
a permit renewal.
SECTIONi8B.14.iiSubchapter C, Chapter 361, Health and Safety Code, is amended by adding Sections 361.123 and 361.124 to read as follows:
Sec.i361.123.iiPERMIT FOR DISPOSAL OF BRUSH, CONSTRUCTION AND DEMOLITION WASTE, AND OTHER NONPUTRESCIBLE WASTES IN ARID-EXEMPT LANDFILLS. This section applies only to a landfill for which an application for an initial permit is filed on or after September 1, 2003, and that is certified as arid-exempt in accordance with commission rule and is designated for the disposal of brush, construction and demolition waste, and other nonputrescible wastes. An application by a landfill for a permit or permit amendment is not subject to a contested case hearing but is subject to notice and opportunity for a nonadjudicative hearing under Subchapter S, Chapter 5, Water Code.
Sec.i361.124.iiPERMIT FOR ANIMAL CREMATORY FACILITY. This section applies only to a facility that stores, processes, or disposes of animal carcasses and that is not eligible for authorization through a permit by rule. An application by a facility for a permit or permit amendment is not subject to a contested case hearing but is subject to the notice and opportunity for a nonadjudicative hearing under Subchapter S, Chapter 5, Water Code.
SECTIONi8B.15.iiSection 361.534, Health and Safety Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3591
(a)iiThe commission may hold a public meeting on [shall set a hearing to be held
not later than the 30th day after the date that the commission receives] an application
under this subchapter.
(c)iiNotice of the public meeting shall be mailed and published as provided by commission rule.
SECTIONi8B.16.iiSection 382.0518(b), Health and Safety Code, is amended to read as follows:
(b)iiThe commission shall grant within a reasonable time a permit or permit
amendment to construct or modify a facility if, from the information available to the
commission, including information presented at a contested case [any] hearing [held
under Section 382.056(k)], the commission finds:
(1)iithe proposed facility for which a permit, permit amendment, or a special permit is sought will use at least the best available control technology, considering the technical practicability and economic reasonableness of reducing or eliminating the emissions resulting from the facility; and
(2)iino indication that the emissions from the facility will contravene the intent of this chapter, including protection of the public's health and physical property.
SECTIONi8B.17.iiSection 382.05191, Health and Safety Code, is amended by amending Subsection (a) and adding Subsection (e) to read as follows:
(a)iiAn applicant for a permit under Section 382.05183, 382.05185(c) or (d),
382.05186, or 382.0519 shall publish notice and provide the opportunity for
nonadjudicative hearing [of intent to obtain the permit] in accordance with Subchapter
S, Chapter 5, Water Code [Section 382.056]. An applicant for a permit under Section
382.05186(b) shall publish notice and provide an opportunity for nonadjudicative
hearing under Section 382.05197.
(e)iiFor an application under Section 382.05183, 382.05185(c) or (d), 382.05186, or 382.0519, the executive director shall prepare a fact sheet that briefly describes the principal facts and significant legal and policy issues, as provided by commission rule.
SECTIONi8B.18.iiSection 382.05197, Health and Safety Code, is amended by amending Subsection (a) and adding Subsection (e) to read as follows:
(a)iiAn application [applicant] for a permit under Section 382.05194 is subject to
notice and opportunity for contested case hearing [shall publish notice of intent to
obtain the permit in accordance with Section 382.056, except that the notice of a
proposed multiple plant permit for existing facilities shall be published in one or more
statewide or regional newspapers that provide reasonable notice throughout the state.
If the multiple plant permit for existing facilities will be effective for only part of the
state, the notice shall be published in a newspaper of general circulation in the area to
be affected. The commission by rule may require that additional notice be given].
(e)iiNotwithstanding Section 5.5515(c), Water Code, notice of a proposed multiple plant permit for existing facilities shall be published in one or more statewide or regional newspapers that provide reasonable notice throughout this state. If the multiple plant permit for existing facilities will be effective for only a part of this state, the notice shall be published in a newspaper of general circulation in the area to be affected. The commission by rule may require that additional notice be given.
3592 78th Legislature — Regular Session 82nd Day
SECTIONi8B.19.iiThe heading to Section 382.056, Health and Safety Code, is amended to read as follows:
Sec.i382.056.iiNOTICE AND [OF INTENT TO OBTAIN PERMIT OR
PERMIT REVIEW;] HEARING.
SECTIONi8B.20.iiSection 382.056, Health and Safety Code, is amended by amending Subsections (a), (o), (q), and (r), and adding Subsections (a-1) through (a-3) to read as follows:
(a)iiAn [Except as provided by Section 382.0518(h), an] applicant for a permit or
permit amendment under Section 382.0518 or a permit renewal review under Section
382.055 shall publish notice of a preliminary decision on [intent to obtain] the permit,
permit amendment, or permit review and provide an opportunity for contested case
hearing as provided by Subchapter M, Chapter 5, Water Code [not later than the 30th
day after the date the commission determines the application to be administratively
complete. The commission by rule shall require an applicant for a federal operating
permit under Section 382.054 to publish notice of intent to obtain a permit, permit
amendment, or permit review consistent with federal requirements and with the
requirements of Subsection (b). The applicant shall publish the notice at least once in
a newspaper of general circulation in the municipality in which the facility or federal
source is located or is proposed to be located or in the municipality nearest to the
location or proposed location of the facility or federal source. If the elementary or
middle school nearest to the facility or proposed facility provides a bilingual
education program as required by Subchapter B, Chapter 29, Education Code, the
applicant shall also publish the notice at least once in an additional publication of
general circulation in the municipality or county in which the facility is located or
proposed to be located that is published in the language taught in the bilingual
education program. This requirement is waived if such a publication does not exist or
if the publisher refuses to publish the notice. The commission by rule shall prescribe
the form and content of the notice and when notice must be published. The
commission may require publication of additional notice. The commission by rule
shall prescribe alternative procedures for publication of the notice in a newspaper if
the applicant is a small business stationary source as defined by Section 382.0365 and
will not have a significant effect on air quality. The alternative procedures must be
cost-effective while ensuring adequate notice. Notice required to be published under
this section shall only be required to be published in the United States].
(a-1)iiAn amendment, modification, or renewal that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted is subject to notice but the commission may not hold a contested case hearing on the amendment, modification, or renewal as provided by this section except as provided by Subsection (e).
(a-2)iiAn application for a permit amendment under this section is not subject to notice and opportunity for a contested case hearing if the total emissions increase from all facilities authorized under the amended permit will meet the de minimus criteria established by commission rule and the emissions will not change in character. An application for a permit amendment for a facility affected by a rule adopted under Section 382.020 is not subject to notice and opportunity for a contested case hearing if the total emissions increase from all facilities authorized under the permit amendment
Friday, May 30, 2003 SENATE JOURNAL 3593
(a-3)iiThe following types of applications for a permit, permit amendment, or permit renewal are not subject to the opportunity for a contested case hearing and are subject to notice and opportunity for a nonadjudicative hearing under Subchapter S, Chapter 5, Water Code:
(1)iiconcrete batch plants;
(2)iirock crushing facilities;
(3)iiconcrete crushing facilities;
(4)iihot mix asphalt plants;
(5)iicotton gins;
(6)iigrain handling facilities; and
(7)iianimal crematory facilities.
(o)iiNotwithstanding other provisions of this chapter, an application for [the
commission may hold a hearing on] a permit amendment, modification, or renewal is
subject to the opportunity for a contested case hearing if it [if the commission
determines that the application] involves a facility for which the applicant's
compliance history is unacceptable to the commission based on violations constituting
a recurring pattern of conduct that demonstrates a consistent disregard for the
regulatory process, including a failure to make a timely and substantial attempt to
correct the violations [in the lowest classification under Sections 5.753 and 5.754,
Water Code, and rules adopted and procedures developed under those sections].
(q)iiThe commission [department] shall establish rules to ensure that a permit
applicant complies with the notice requirement under Subchapter M, Chapter 5, Water
Code [Subsection (a)].
(r)iiAn application is not subject to notice and opportunity for a contested case
hearing if the application involves [This section does not apply to]:
(1)iithe relocation or change of location of a portable facility to a site where
an authorized portable [a] 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 portable facility located temporarily in the right-of-way, or contiguous to the right-of-way, of a public works project.
SECTIONi8B.21.iiThe heading to Section 382.0561, Health and Safety Code, is amended to read as follows:
Sec.i382.0561.iiFEDERAL OPERATING PERMIT: NOTICE AND HEARING.
SECTIONi8B.22.iiSection 382.0561(f), Health and Safety Code, is amended to read as follows:
(f)iiNotice of the public comment period and opportunity for a hearing under this section shall be published in accordance with commission rules and include:
(1)iia description of the location or proposed location of the facility or federal source;
(2)iia description of the manner in which the commission may be contacted for further information, including a telephone number;
3594 78th Legislature — Regular Session 82nd Day
(3)iia statement that a person who may be affected by emissions of air contaminants from the facility, proposed facility, or federal source, is entitled to request a nonadjudicative hearing from the commission; and
(4)iiany other information the commission by rule requires [Section
382.056].
SECTIONi8B.23.iiSection 382.065, Health and Safety Code, as added by Chapter 965, Acts of the 77th Legislature, Regular Session, 2001, is amended by adding Subsection (c) to read as follows:
(c)iiFor the purposes of applying the restriction regarding the distance between a concrete crushing facility and a building under Subsection (a), the commission shall determine the location of the building as of the date the permit application is filed with the commission.
SECTIONi8B.24.iiThe following laws are repealed:
(1)iiSection 5.552, Water Code;
(2)iiSections 5.553(b), (c), and (d), Water Code;
(3)iiSections 5.556(d) and (e), Water Code; and
(4)iiSection 5.557, Water Code.
SECTIONi8B.25.iiSections 361.0791 and 361.088(d), Health and Safety Code, are repealed.
SECTIONi8B.26.iiThe following laws are repealed:
(1)iiSections 2003.047 and 2003.048, Government Code; and
(2)iiSections 361.534(b), 382.0518(h) and (i), 382.05191(b) and (c), 382.05197(b) and (c), 382.056(b)-(n) and (p), and 382.058, Health and Safety Code.
ARTICLE 8C. COMPLIANCE HISTORY
SECTIONi8C.01.iiSubchapter Q, Chapter 5, Water Code, is repealed.
SECTIONi8C.02.iiSection 361.0215(c), Health and Safety Code, is repealed.
SECTIONi8C.03.iiSection 27.051(h), Water Code, as added by Chapter 965, Acts of the 77th Legislature, Regular Session, 2001, is repealed.
SECTIONi8C.04.iiSection 26.0281, Water Code, is amended to read as follows:
Sec.i26.0281.iiCONSIDERATION OF PAST PERFORMANCE AND
COMPLIANCE [HISTORY]. In considering the issuance, amendment, or renewal of
a permit to discharge effluent comprised primarily of sewage or municipal waste, the
commission shall consider any adjudicated decision or [the] compliance proceeding
addressing past performance and compliance [history] of the applicant and its operator
with the laws of this state governing waste discharge, waste treatment, or waste
disposal facilities and with the terms of any permit or order issued by the commission
[under the method for evaluating compliance history developed by the commission
under Section 5.754]. In considering an applicant's compliance history under this
subsection, the commission shall consider as evidence of compliance information
regarding the applicant's implementation of an environmental management system at
the facility for which the permit, permit amendment, or permit renewal is sought. In
this section, "environmental management system" has the meaning assigned by
Section 5.127.
SECTIONi8C.05.iiSection 26.040(h), Water Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3595
(h)iiNotwithstanding other provisions of this chapter, the commission, after
hearing, shall deny or suspend a discharger's authority to discharge under a general
permit if the commission determines that the discharger operates any facility for
which the discharger's compliance history contains violations constituting a recurring
pattern of egregious conduct that demonstrates a consistent disregard for the
regulatory process, including a failure to make a timely and substantial attempt to
correct the violations [is in the lowest classification under Sections 5.753 and 5.754
and rules adopted and procedures developed under those sections]. A hearing under
this subsection is not subject to Chapter 2001, Government Code.
SECTIONi8C.06.iiSection 27.051(d), Water Code, and Section 27.051(e), Water Code, as amended by Chapter 965, Acts of the 77th Legislature, Regular Session, 2001, are amended to read as follows:
(d)iiThe commission, in determining if the use or installation of an injection well is in the public interest under Subsection (a)(1), shall consider, but shall not be limited to the consideration of:
(1)iicompliance history of the applicant and related entities [under the
method for evaluating compliance history developed by the commission under
Section 5.754 and] in accordance with the provisions of Subsection (e);
(2)iiwhether there is a practical, economic, and feasible alternative to an injection well reasonably available; and
(3)iiif the injection well will be used for the disposal of hazardous waste, whether the applicant will maintain sufficient public liability insurance for bodily injury and property damage to third parties that is caused by sudden and non-sudden accidents or will otherwise demonstrate financial responsibility in a manner adopted by the commission in lieu of public liability insurance. A liability insurance policy which satisfies the policy limits required by the hazardous waste management regulations of the commission for the applicant's proposed pre-injection facilities shall be deemed "sufficient" under this subdivision if the policy:
(A)iicovers the injection well; and
(B)iiis issued by a company that is authorized to do business and to write that kind of insurance in this state and is solvent and not currently under supervision or in conservatorship or receivership in this state or any other state.
(e)iiThe [Consistent with Sections 5.753 and 5.754 and rules adopted and
procedures developed under those sections, the] commission shall establish a
procedure by rule for its preparation of compliance summaries relating to the history
of compliance and noncompliance by the applicant with the rules adopted or orders or
permits issued by the commission under this chapter for any injection well for which a
permit has been issued under this chapter [for preparing summaries of the applicant's
compliance history]. The compliance summaries shall be made available to the
applicant and any interested person after the commission has completed its technical
review of the permit application and prior to the promulgation of the public notice
relating to the issuance of the permit. Evidence of compliance or noncompliance by
an applicant for an injection well for the disposal of hazardous waste with the rules
adopted or orders or permits issued by the commission under this chapter may be
offered by any party at a hearing on the applicant's application and admitted into
evidence subject to applicable rules of evidence. [In accordance with this subsection
3596 78th Legislature — Regular Session 82nd Day
SECTIONi8C.07.iiSections 361.084(a) and (c), Health and Safety Code, are amended to read as follows:
(a)iiThe commission by rule shall establish a procedure to prepare compliance
summaries relating to the applicant's solid waste management activities [in
accordance with the method for evaluating compliance history developed by the
commission under Section 5.754, Water Code]. A compliance summary shall include
as evidence of compliance information regarding the applicant's implementation of an
environmental management system at the facility for which the authorization is
sought. In this subsection, "environmental management system" has the meaning
assigned by Section 5.127, Water Code.
(c)iiEvidence of compliance or noncompliance by an applicant for a solid waste management facility permit with agency rules, permits, other orders, or evidence of a final determination of noncompliance with federal statutes or statutes of any state in the preceding five years concerning solid waste management may be:
(1)iioffered by a party at a hearing concerning the application; and
(2)iiadmitted into evidence subject to applicable rules of evidence.
SECTIONi8C.08.iiSection 361.088(f), Health and Safety Code, is amended to read as follows:
(f)iiNotwithstanding Subsection (e), if the commission determines that an
applicant's compliance history for the preceding five years [under the method for
evaluating compliance history developed by the commission under Section 5.754,
Water Code,] raises an issue regarding the applicant's ability to comply with a
material term of its permit, the commission shall provide an opportunity to request a
contested case hearing.
SECTIONi8C.09.iiSections 361.089(a), (e), and (f), Health and Safety Code, are amended to read as follows:
(a)iiThe commission may, for good cause, deny or amend a permit it issues or
has authority to issue for reasons pertaining to public health, air or water pollution, or
land use, or for a violation of this chapter or other applicable laws or rules controlling
the management of solid waste [having a compliance history that is in the lowest
classification under Sections 5.753 and 5.754, Water Code, and rules adopted and
procedures developed under those sections].
(e)iiThe commission may deny an original or renewal permit if it is found, after notice and hearing, that:
(1)iithe applicant or permit holder has a record of environmental violations
in the preceding five years at the permitted site [compliance history that is in the
lowest classification under Sections 5.753 and 5.754, Water Code, and rules adopted
and procedures developed under those sections];
Friday, May 30, 2003 SENATE JOURNAL 3597
(2)iithe permit holder or applicant made a false or misleading statement in connection with an original or renewal application, either in the formal application or in any other written instrument relating to the application submitted to the commission, its officers, or its employees;
(3)iithe permit holder or applicant is indebted to the state for fees, payment
of penalties, or taxes imposed by this title or by a rule of the commission; [or]
(4)iithe permit holder or applicant is unable to ensure that the management of the hazardous waste management facility conforms or will conform to this title and the rules of the commission; or
(5)iithe applicant has a record of environmental violations in the preceding five years at any site owned, operated, or controlled by the applicant.
(f)iiBefore denying a permit under this section, the commission must find:
(1)iithat a violation or violations are significant and that the permit holder or
applicant has not made a substantial attempt to correct the violations [the applicant or
permit holder has a compliance history that is in the lowest classification under
Sections 5.753 and 5.754, Water Code, and rules adopted and procedures developed
under those sections]; or
(2)iithat the permit holder or applicant is indebted to the state for fees, payment of penalties, or taxes imposed by this title or by a rule of the commission.
SECTIONi8C.10.iiSection 382.0518(c), Health and Safety Code, is amended to read as follows:
(c)iiIn considering the issuance, amendment, or renewal of a permit, the
commission may consider any adjudicated decision or compliance proceeding within
the five years before the date on which the application was filed that addressed the
applicant's past performance and compliance with the laws of this state, another state,
or the United States governing air contaminants or with the terms of any permit or
order issued by the commission [the applicant's compliance history in accordance
with the method for evaluating compliance history developed by the commission
under Section 5.754, Water Code]. In considering an applicant's compliance history
under this subsection, the commission shall consider as evidence of compliance
information regarding the applicant's implementation of an environmental
management system at the facility for which the permit, permit amendment, or permit
renewal is sought. In this subsection, "environmental management system" has the
meaning assigned by Section 5.127, Water Code.
SECTIONi8C.11.iiSection 382.055(d), Health and Safety Code, is amended to read as follows:
(d)iiIn determining whether and under which conditions a preconstruction permit should be renewed, the commission shall consider, at a minimum:
(1)iiwhether the [performance of the owner or operator of the] facility is or
has been in substantial compliance with this chapter and the terms of the existing
permit [according to the method developed by the commission under Section 5.754,
Water Code]; and
(2)iithe condition and effectiveness of existing emission control equipment and practices.
SECTIONi8C.12.iiSection 382.056(o), Health and Safety Code, is amended to read as follows:
3598 78th Legislature — Regular Session 82nd Day
(o)iiNotwithstanding other provisions of this chapter, the commission may hold a
hearing on a permit amendment, modification, or renewal if the commission
determines that the application involves a facility for which the applicant's
compliance history is unacceptable to the commission based on violations constituting
a recurring pattern of conduct that demonstrates a consistent disregard for the
regulatory process, including a failure to make a timely and substantial attempt to
correct the violations [in the lowest classification under Sections 5.753 and 5.754,
Water Code, and rules adopted and procedures developed under those sections].
SECTIONi8C.13.iiSection 401.110, Health and Safety Code, is amended to read as follows:
Sec.i401.110.iiDETERMINATION ON LICENSE. In making a determination
whether to grant, deny, amend, renew, revoke, suspend, or restrict a license or
registration, the commission may consider an applicant's or license holder's technical
competence, financial qualifications, and the applicant's or license holder's record in
areas involving radiation [compliance history under the method for evaluation of
compliance history developed by the commission under Section 5.754, Water Code].
SECTIONi8C.14.iiSection 401.112(a), Health and Safety Code, is amended to read as follows:
(a)iiThe department or commission, within its jurisdiction, in making a licensing decision on a specific license application to process or dispose of low-level radioactive waste from other persons, shall consider:
(1)iisite suitability, geological, hydrological, and meteorological factors, and natural hazards;
(2)iicompatibility with present uses of land near the site;
(3)iisocioeconomic effects on surrounding communities of operation of the licensed activity and of associated transportation of low-level radioactive waste;
(4)iithe need for and alternatives to the proposed activity, including an alternative siting analysis prepared by the applicant;
(5)iithe applicant's qualifications, including financial and technical
qualifications and past operating practices [and compliance history under the method
for evaluation of compliance history developed by the commission under Section
5.754, Water Code];
(6)iibackground monitoring plans for the proposed site;
(7)iisuitability of facilities associated with the proposed activities;
(8)iichemical, radiological, and biological characteristics of the low-level radioactive waste and waste classification under Section 401.053;
(9)iiadequate insurance of the applicant to cover potential injury to any property or person, including potential injury from risks relating to transportation;
(10)iitraining programs for the applicant's employees;
(11)iia monitoring, record-keeping, and reporting program;
(12)iispill detection and cleanup plans for the licensed site and related to associated transportation of low-level radioactive waste;
(13)iidecommissioning and postclosure care plans;
(14)iisecurity plans;
(15)iiworker monitoring and protection plans;
(16)iiemergency plans; and
Friday, May 30, 2003 SENATE JOURNAL 3599
(17)iia monitoring program for applicants that includes prelicense and postlicense monitoring of background radioactive and chemical characteristics of the soils, groundwater, and vegetation.
[ARTICLES 8D and 8E. RESERVED]
ARTICLE 8F. CERTAIN FEES RELATED TO CLEAN AIR ACT
SECTIONi8F.01.iiSection 382.0622, Health and Safety Code, is amended by amending Subsection (b) and adding Subsections (b-1), (b-2), and (b-3) to read as follows:
(b)iiExcept as provided by Subsection (b-1), Clean Air Act fees shall be deposited in the state treasury to the credit of the clean air account and shall be used to safeguard the air resources of the state.
(b-1)iiFees collected under Section 382.0621(a) on or after September 1, 2003, shall be deposited in the state treasury to the credit of the operating permit fees account. Fees collected under Section 382.0621(a) may not be commingled with any fees in the clean air account or with any other money in the state treasury.
(b-2)iiMoney in the operating permit fees account established under Subsection (b-1) may be appropriated to the commission only to cover the costs of developing and administering the federal permit programs under Title IV or V of the federal Clean Air Act (42 U.S.C. Section 7651 et seq. and Section 7661 et seq.).
(b-3)iiSection 403.095, Government Code, does not apply to the operating permit fees account established under Subsection (b-1), and any balance remaining in the operating permit fees account at the end of a fiscal year shall be left in the account and used in the next or subsequent fiscal years only for the purposes stated in Subsection (b-2).
SECTIONi8F.02.iiNot later than December 1, 2003, the Texas Commission on Environmental Quality shall adopt any rules required for the implementation of this article.
ARTICLE 8G. OIL SPILL PREVENTION AND RESPONSE
SECTIONi8G.01.iiSection 40.002(c), Natural Resources Code, is amended to read as follows:
(c)iiThe legislature intends by this chapter to exercise the police power of the state to protect its coastal waters and adjacent shorelines by conferring upon the Commissioner of the General Land Office the power to:
(1)iiprevent spills and discharges of oil by requiring and monitoring preventive measures and response planning;
(2)iiprovide for prompt response to abate and contain spills and discharges of oil and ensure the removal and cleanup of pollution from such spills and discharges;
[(3)iiprovide for development of a state coastal discharge contingency plan
through planning and coordination with the Texas Natural Resource Conservation
Commission to protect coastal waters from all types of spills and discharges;] and
(3)i[(4)]iiadminister a fund to provide for funding these activities and to
guarantee the prompt payment of certain reasonable claims resulting from spills and
discharges of oil.
SECTIONi8G.02.iiSections 40.003(13), (17), and (22), Natural Resources Code, are amended to read as follows:
3600 78th Legislature — Regular Session 82nd Day
(13)ii"Hazardous substance" means any substance, except oil, designated as
hazardous by the Environmental Protection Agency pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Sec.
9601 et seq.) and designated by the Texas [Natural Resource Conservation]
Commission on Environmental Quality.
(17)ii"Oil" means oil of any kind or in any form, including but not limited to
crude oil, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than
dredged spoil, but does not include petroleum, including crude oil or any fraction
thereof, which is specifically listed or designated as a hazardous substance under
Subparagraphs (A) through (F) of Section 101(14) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Sec.
9601 et seq.) and which is subject to the provisions of that Act, and which is so
designated by the Texas [Natural Resource Conservation] Commission on
Environmental Quality.
(22)ii"Response costs" means:
(A)iiwith respect to an actual or threatened discharge of oil, all costs incurred in an attempt to prevent, abate, contain, and remove pollution from the discharge, including costs of removing vessels or structures under this chapter, and costs of any reasonable measures to prevent or limit damage to the public health, safety, or welfare, public or private property, or natural resources; or
(B)iiwith respect to an actual or threatened discharge of a hazardous
substance, only costs incurred to supplement the response operations of the Texas
[Natural Resource Conservation] Commission on Environmental Quality.
SECTIONi8G.03.iiSection 40.005, Natural Resources Code, is amended to read as follows:
Sec.i40.005.iiADMINISTRATION OF HAZARDOUS SUBSTANCE SPILL
RESPONSE AND CLEANUP. The General Land Office, under the direction and
control of the commissioner, is the state's lead agency for initiating response to all
actual or threatened unauthorized discharges of oil. In the event of an unauthorized
discharge of a hazardous substance, nothing in this chapter shall preclude the Texas
[Natural Resource Conservation] Commission on Environmental Quality from at the
earliest time practicable assuming response and cleanup duties pursuant to Subchapter
G, Chapter 26, Water Code[, and the state coastal discharge contingency plan].
SECTIONi8G.04.iiSection 40.052, Natural Resources Code, is amended to read as follows:
Sec.i40.052.iiHAZARDOUS SUBSTANCES DISCHARGES. If the
unauthorized discharge involves predominantly a hazardous substance, the Texas
[Natural Resource Conservation] Commission on Environmental Quality shall carry
out responsibility for abatement, containment, removal, and cleanup of the hazardous
substances discharged, pursuant to Subchapter G, Chapter 26, Water Code[, and to the
state coastal discharge contingency plan].
SECTIONi8G.05.iiSection 40.101(c), Natural Resources Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3601
(c)iiIn order to prevent duplication of effort among state agencies, the
commissioner shall utilize the expertise of the Texas [Natural Resource Conservation]
Commission on Environmental Quality on technical and scientific actions, including
but not limited to:
(1)iitaking samples in the spill area;
(2)iimonitoring meteorological conditions that may affect spill response operations; and
(3)iiregulating disposal of spilled material.
SECTIONi8G.06.iiSection 40.103(b), Natural Resources Code, is amended to read as follows:
(b)iiAny person or discharge cleanup organization that renders assistance in
abating, containing, or removing pollution from any unauthorized discharge of oil
may receive compensation from the fund for response costs, provided the
commissioner approves compensation prior to the assistance being rendered. [Prior
approval for compensation may be provided for in the state coastal discharge
contingency plan.] The commissioner, on petition and for good cause shown, may
waive the prior approval prerequisite.
SECTIONi8G.07.iiSection 40.104, Natural Resources Code, is amended to read as follows:
Sec.i40.104.iiQUALIFIED IMMUNITY FOR RESPONSE ACTIONS. (a) No
action taken by any person or discharge cleanup organization to abate, contain, or
remove pollution from an unauthorized discharge of oil, whether such action is taken
voluntarily, or pursuant to the national contingency plan [or state coastal discharge
contingency plan], or pursuant to a discharge response plan required under this
chapter, or pursuant to the request of an authorized federal or state official, or pursuant
to the request of the responsible person, shall be construed as an admission of
responsibility or liability for the discharge.
(b)iiNo person or discharge cleanup organization that voluntarily, or pursuant to
the national contingency plan [or the state coastal discharge contingency plan], or
pursuant to any discharge response plan required under this chapter, or pursuant to the
request of an authorized federal or state official, or pursuant to the request of the
responsible person, renders assistance or advice in abating, containing, or removing
pollution from an unauthorized discharge of oil is liable for response costs, damages,
or civil penalties resulting from acts or omissions committed in rendering such
assistance or advice, except for acts or omissions of gross negligence or wilful
misconduct.
SECTIONi8G.08.iiSection 40.107(a)(1), Natural Resources Code, is amended to read as follows:
(1)iiIn any action to recover natural resources damages, the amount of
damages established by the commissioner in conjunction with the trustees[, according
to the procedures and plans contained in the state coastal discharge contingency plan,]
shall create a rebuttable presumption of the amount of such damages.
SECTIONi8G.09.iiSections 40.107(c)(1) and (4), Natural Resources Code, are amended to read as follows:
3602 78th Legislature — Regular Session 82nd Day
(1)iiThe commissioner, in conjunction with the trustees, shall develop an
inventory that identifies and catalogs the physical locations, the seasonal variations in
location, and the current condition of natural resources; provides for data collection
related to coastal processes; and identifies the recreational and commercial use areas
that are most likely to suffer injury from an unauthorized discharge of oil. The
inventory shall be completed by September 1, 1995[, and shall be incorporated into
the state coastal discharge contingency plan after public review and comment].
(4)iiThe commissioner shall adopt administrative procedures and protocols
for the assessment of natural resource damages from an unauthorized discharge of oil.
As developed through negotiated rulemaking with the trustees and other interested
parties, the procedures and protocols shall require the trustees to assess natural
resource damages by considering the unique characteristics of the spill incident and
the location of the natural resources affected. These procedures and protocols shall be
adopted by rule, by the trustee agencies after negotiation, notice, and public comment,
by June 1, 1994[, and shall be incorporated into the state coastal discharge
contingency plan].
SECTIONi8G.10.iiSection 40.116, Natural Resources Code, is amended to read as follows:
Sec.i40.116.iiAUDITS, INSPECTIONS, and DRILLS. The commissioner may
subject a vessel subject to Section 40.114 of this code[, as a condition to being granted
entry into any port in this state,] or a terminal facility to an announced or
unannounced audit, inspection, or drill to determine the discharge prevention and
response capabilities of the terminal facility or vessels. Any vessel drill conducted by
the commissioner shall be in cooperation and conjunction with the United States
Coast Guard, and the commissioner's participation may not interfere with the
schedule of the vessel.
SECTIONi8G.11.iiSection 40.151(b), Natural Resources Code, is amended to read as follows:
(b)iiThe coastal protection fund is established in the state treasury to be used by the commissioner as a nonlapsing revolving fund only for carrying out the purposes of this chapter and of Subchapter H, Chapter 33. To this fund shall be credited all fees, penalties, judgments, reimbursements, interest or income on the fund, and charges provided for in this chapter and the fee revenues levied, collected, and credited pursuant to this chapter. The fund shall not exceed $50 million.
SECTIONi8G.12.iiSection 40.152(a), Natural Resources Code, is amended to read as follows:
(a)iiMoney in the fund may be disbursed for the following purposes and no others:
(1)iiadministrative expenses, personnel and training expenses, and equipment maintenance and operating costs related to implementation and enforcement of this chapter;
(2)iiresponse costs related to abatement and containment of actual or threatened unauthorized discharges of oil incidental to unauthorized discharges of hazardous substances;
(3)iiresponse costs and damages related to actual or threatened unauthorized discharges of oil;
Friday, May 30, 2003 SENATE JOURNAL 3603
(4)iiassessment, restoration, rehabilitation, or replacement of or mitigation of damage to natural resources damaged by an unauthorized discharge of oil;
(5)iiin an amount not to exceed $50,000 annually, the small spill education program;
(6)iiin an amount not to exceed $1,250,000 annually, interagency contracts under Section 40.302;
(7)iithe purchase of response equipment under Section 40.105 within two years of the effective date of this chapter, in an amount not to exceed $4 million; thereafter, for the purchase of equipment to replace equipment that is worn or obsolete;
(8)ii[an inventory under Section 40.107, to be completed by September 1,
1995, in an amount not to exceed $6 million;
[(9)] other costs and damages authorized by this chapter; [and]
(9)i[(10)]iiin an amount not to exceed the interest accruing to the fund
annually, erosion response projects under Subchapter H, Chapter 33; and
(10)iiin conjunction with the Railroad Commission of Texas, costs related to the plugging of abandoned or orphaned oil wells located on state-owned submerged lands.
SECTIONi8G.13.iiSection 40.254(g)(3), Natural Resources Code, is amended to read as follows:
(3)ii[A person who fails to comply with Subdivision (2) of this subsection
waives the right to judicial review.] On failure of the person to comply with the order
or file a petition for judicial review [Subdivision (2) of this subsection], the
commissioner may refer the matter to the attorney general for collection and
enforcement.
SECTIONi8G.14.iiSection 40.254(h)(1), Natural Resources Code, is amended to read as follows:
(1)iiIf a penalty is reduced or not assessed, the commissioner shall[:
[(A)]iiremit to the person charged the appropriate amount of any penalty
payment plus accrued interest[; or
[(B)iiexecute a release of the bond if a supersedeas bond has been
posted].
SECTIONi8G.15.iiSections 40.258(a)(1), (2), and (3), Natural Resources Code, are amended to read as follows:
(1)iiThe commissioner shall promulgate rules [and a state coastal discharge
contingency plan] that, to the greatest extent practicable, conform to the national
contingency plan and rules promulgated under federal law.
(2)iiThe commissioner may impose requirements under such rules [and the
state coastal discharge contingency plan] that are in addition to or vary materially
from federal requirements if the state interests served by the requirements
substantially outweigh the burdens imposed on those subject to the requirements.
(3)iiAny request for judicial review of any rule [or any provision of the state
coastal discharge contingency plan based on Subdivision (1) or (2) of this subsection]
must be filed in a district court in Travis County within 90 days of the effective date of
the rule or plan challenged.
3604 78th Legislature — Regular Session 82nd Day
SECTIONi8G.16.iiSections 40.006, 40.053, 40.110(f), 40.115, 40.117(b), 40.151(e), 40.254(g)(2), and 40.303, Natural Resources Code, are repealed.
[ARTICLE 8H. RESERVED]
ARTICLE 8I. REPORTS
SECTIONi8I.01.iiSection 363.064(a), Health and Safety Code, is amended to read as follows:
(a)iiA regional or local solid waste management plan must:
(1)iiinclude a description and an assessment of current efforts in the geographic area covered by the plan to minimize production of municipal solid waste, including sludge, and efforts to reuse or recycle waste;
(2)iiidentify additional opportunities for waste minimization and waste reuse or recycling;
(3)iiinclude a description and assessment of existing or proposed community programs for the collection of household hazardous waste;
(4)iimake recommendations for encouraging and achieving a greater degree of waste minimization and waste reuse or recycling in the geographic area covered by the plan;
(5)iiencourage cooperative efforts between local governments in the siting of landfills for the disposal of solid waste;
(6)iiconsider the need to transport waste between municipalities, from a municipality to an area in the jurisdiction of a county, or between counties, particularly if a technically suitable site for a landfill does not exist in a particular area;
(7)iiallow a local government to justify the need for a landfill in its jurisdiction to dispose of the solid waste generated in the jurisdiction of another local government that does not have a technically suitable site for a landfill in its jurisdiction;
(8)iiestablish recycling rate goals appropriate to the area covered by the plan;
(9)iirecommend composting programs for yard waste and related organic wastes that may include:
(A)iicreation and use of community composting centers;
(B)iiadoption of the "Don't Bag It" program for lawn clippings developed by the Texas Agricultural Extension Service; and
(C)iidevelopment and promotion of education programs on home composting, community composting, and the separation of yard waste for use as mulch;
(10)iiinclude an inventory of municipal solid waste landfill units, including:
(A)iilandfill units no longer in operation;
(B)iithe exact boundaries of each former landfill unit or, if the exact boundaries are not known, the best approximation of each unit's boundaries;
(C)iia map showing the approximate boundaries of each former landfill unit, if the exact boundaries are not known;
(D)iithe current owners of the land on which the former landfill units were located; and
(E)iithe current use of the land;
(11)iiassess the need for new waste disposal capacity; and
Friday, May 30, 2003 SENATE JOURNAL 3605
(12)iiinclude a public education program[; and
[(13) include waste reduction in accordance with the goal established under
Section 361.0201(d), to the extent that funds are available].
SECTIONi8I.02.iiThe heading to Section 5.178, Water Code, is amended to read as follows:
Sec.i5.178.iiANNUAL REPORTS; BIENNIAL APPENDICES
[APPENDIXES].
SECTIONi8I.03.iiSection 5.178(b), Water Code, is amended to read as follows:
(b)iiThe report due by December 1 of an even-numbered year shall include, in addition:
(1)iithe commission's recommendations for necessary and desirable legislation; and
(2)iithe following reports:
(A)iithe assessments and reports required by Section [Sections]
361.0219(c)[, 361.0232, 361.510, 371.063, and 382.141], Health and Safety Code;
(B)iithe reports required by Section 26.0135(d) [of this code] and
Section 5.02, Chapter 133, Acts of the 69th Legislature, Regular Session, 1985; and
(C)iia summary of the analyses and assessments required by Section
5.1773 [of this code].
SECTIONi8I.04.ii(a) Sections 361.020, 361.0201, 361.0232, 361.0233, 361.0234, 361.040(d), 361.0871(c), 361.510, 371.063, 382.141, Health and Safety Code, are repealed.
(b)iiSection 5.178(c), Water Code, is repealed.
[ARTICLE 8J. RESERVED]
ARTICLE 8K. ALTERNATIVE FUELS AND VEHICLES
SECTIONi8K.01.iiThe following laws are repealed:
(1)iiSubchapter F, Chapter 382, Health and Safety Code; and
(2)iithe following subchapters of the Transportation Code:
(A)iiSubchapter G, Chapter 451;
(B)iiSubchapter F, Chapter 452;
(C)iiSubchapter F, Chapter 453; and
(D)iiSubchapter E, Chapter 457.
SECTIONi8K.02.iiSection 113.287(e), Natural Resources Code, is amended to read as follows:
(e)iiA state agency, county, municipality, school district, or mass transit authority or department is eligible to receive a loan, grant, or other disbursement under this subchapter to carry out an eligible conversion or infrastructure project regarding LPG or another environmentally beneficial fuel to comply with fuel requirements provided by or by rules adopted under:
(1)ii[Subchapter F, Chapter 382, Health and Safety Code;
[(2)]iiSubchapter A, Chapter 2158, Government Code; or
(2)i[(3)]iiSubchapter C, Chapter 2171, Government Code[;
[(4)iiSubchapter G, Chapter 451, Transportation Code;
[(5)iiSubchapter F, Chapter 452, Transportation Code; or
[(6)iiSubchapter F, Chapter 453, Transportation Code].
3606 78th Legislature — Regular Session 82nd Day
SECTIONi8K.03.iiSection 2158.001, Government Code, is amended to read as follows:
Sec.i2158.001.iiDEFINITION. In this subchapter, "conventional gasoline"
means any gasoline that does not meet specifications set by a certification under
Section 211(k) of the federal Clean Air Act (42 U.S.C. Section 7545(k)), as amended
[has the meaning assigned by Section 382.131, Health and Safety Code].
SECTIONi8K.04.iiSection 1232.104(a), Government Code, is amended to read as follows:
(a)iiIf the authority determines that a project is financially viable and sufficient revenue is or will be available, the authority may issue and sell obligations the proceeds of which shall be used for the financing of:
(1)iithe conversion of state agency vehicles and other sources of substantial energy output to an alternative fuel under Subchapter A, Chapter 2158;
(2)iithe construction, acquisition, or maintenance by the commission of fueling stations supplying alternative fuels or equipment enhancing the use of engine-driven technology to support state agency vehicles and other energy applications that use an alternative fuel;
(3)iithe conversion of school district motor vehicles and other sources of substantial energy output to an alternative fuel;
(4)iithe construction, acquisition, or maintenance by a school district of fueling stations supplying alternative fuels or equipment enhancing the use of engine-driven technology to support school district motor vehicles and other energy applications that use an alternative fuel;
(5)iithe conversion of local mass transit authority or department motor
vehicles and other sources of substantial energy output to an alternative fuel [under
Chapters 451, 452, and 453, Transportation Code];
(6)iithe construction, acquisition, or maintenance of fueling stations supplying alternative fuels or equipment enhancing the use of engine-driven technology by a local mass transit authority or department to support transit authority or department vehicles and other energy applications that use an alternative fuel;
(7)iithe conversion of motor vehicles and other sources of substantial energy
output of a local government[, as defined by Section 382.003, Health and Safety
Code,] to an alternative fuel [under Section 382.134, Health and Safety Code];
(8)iithe conversion of motor vehicles and other sources of substantial energy output of a hospital district or authority, a housing authority, or a district or authority created under Section 52, Article III, Texas Constitution, or Section 59, Article XVI, Texas Constitution, to an alternative fuel;
(9)iithe construction, acquisition, or maintenance of fueling stations supplying alternative fuels or equipment enhancing the use of engine-driven technology to support motor vehicles and other energy applications that use an alternative fuel by a county, a municipality, or an entity described by Subdivision (8); or
(10)iia joint venture between the private sector and a state agency or political subdivision that is required under law to use an alternative fuel in the agency's or subdivision's vehicles or other energy applications to:
Friday, May 30, 2003 SENATE JOURNAL 3607
(A)iiconvert vehicles or other sources of substantial energy output to an alternative fuel;
(B)iidevelop fueling stations and resources for the supply of alternative fuels and engine-driven applications;
(C)iiaid in the distribution of alternative fuels; and
(D)iiengage in other projects to facilitate the use of alternative fuels.
SECTIONi8K.05.iiSection 5.178(b), Water Code, is amended to read as follows:
(b)iiThe report due by December 1 of an even-numbered year shall include, in addition:
(1)iithe commission's recommendations for necessary and desirable legislation; and
(2)iithe following reports:
(A)iithe assessments and reports required by Sections 361.0219(c),
361.0232, 361.510, and 371.063[, and 382.141], Health and Safety Code;
(B)iithe reports required by Section 26.0135(d) of this code and Section 5.02, Chapter 133, Acts of the 69th Legislature, Regular Session, 1985; and
(C)iia summary of the analyses and assessments required by Section 5.1773 of this code.
SECTIONi8K.06.ii Title 2, Agriculture Code, is amended by adding Chapter 16 to read as follows:
CHAPTER 16. FUEL ETHANOL AND BIODIESEL PRODUCTION
Sec.i16.001.iiDEFINITIONS. In this chapter:
(1)ii"Account" means the fuel ethanol and biodiesel production account.
(2)ii"ASTM" means the American Society for Testing and Materials.
(3)ii"Biodiesel" means a monoalkyl ester that:
(A)iiis derived from vegetable oils, rendered animal fats, or renewable lipids or a combination of those ingredients; and
(B)iimeets the requirements of ASTM PS 121, the provisional specification for biodiesel.
(4)ii"Fuel ethanol" means ethyl alcohol that:
(A)iihas a purity of at least 99 percent, exclusive of added denaturants;
(B)iihas been denatured in conformity with a method approved by the Bureau of Alcohol, Tobacco and Firearms of the United States Department of the Treasury;
(C)iimeets the requirements of ASTM D4806, the standard specification for ethanol used as a motor fuel; and
(D)iiis produced exclusively from agricultural products or by-products or municipal solid waste.
(5)ii"Producer" means a person who operates a fuel ethanol or biodiesel plant in this state.
Sec.i16.002.iiPLANT REGISTRATION. (a) To be eligible for a grant for fuel ethanol or biodiesel produced in a plant, a producer must apply to the department for the registration of the plant. A producer may apply for the registration of more than one plant.
(b)iiAn application for the registration of a plant must show to the satisfaction of the department that:
3608 78th Legislature — Regular Session 82nd Day
(1)iithe plant is capable of producing fuel ethanol or biodiesel;
(2)iithe producer has made a substantial investment of resources in this state in connection with the plant; and
(3)iithe plant constitutes a permanent fixture in this state.
(c)iiThe department shall register each plant that qualifies under this section.
Sec.i16.003.iiREPORTS. (a) On or before the fifth day of each month, a producer shall report to the department on:
(1)iithe number of gallons of fuel ethanol or biodiesel produced at each registered plant operated by the producer during the preceding month;
(2)iithe number of gallons of fuel ethanol or biodiesel imported into this state by the producer during the preceding month;
(3)iithe number of gallons of fuel ethanol or biodiesel sold or blended with motor fuels by the producer during the preceding month; and
(4)iithe total value of agricultural products consumed in each registered plant operated by the producer during the preceding month.
(b)iiA producer who fails to file a report as required by this section is ineligible to receive a grant for the period for which the report is not filed.
Sec.i16.004.iiFUEL ETHANOL AND BIODIESEL PRODUCTION ACCOUNT. (a) The fuel ethanol and biodiesel production account is an account in the general revenue fund that may be appropriated only to the department for the purposes of this chapter, including the making of grants under this chapter.
(b)iiThe account is composed of:
(1)iifees collected under Section 16.005; and
(2)iimoney transferred to the account under Subsection (c).
(c)iiThe comptroller shall transfer from the undedicated portion of the general revenue fund to the account an amount of money equal to 5.25 times the amount of the fees collected under Section 16.005.
Sec.i16.005.iiFEE ON FUEL ETHANOL AND BIODIESEL PRODUCTION. (a) The department shall impose a fee on each producer in an amount equal to 3.2 cents for each gallon of fuel ethanol or biodiesel produced in each registered plant operated by the producer.
(b)iiFor each fiscal year, the department may not impose fees on a producer for more than 18 million gallons of fuel ethanol or biodiesel produced at any one registered plant.
(c)iiThe department shall transfer the fees collected under this section to the comptroller for deposit to the credit of the account.
(d)iiThe department may not impose fees on a producer for fuel ethanol or biodiesel produced at a registered plant after the 10th anniversary of the date production from the plant begins.
Sec.i16.006.iiFUEL ETHANOL AND BIODIESEL GRANTS. (a) The department shall make grants to producers as an incentive for the development of the fuel ethanol and biodiesel industry and agricultural production in this state.
(b)iiA producer is entitled to receive from the account 20 cents for each gallon of fuel ethanol or biodiesel produced in each registered plant operated by the producer until the 10th anniversary of the date production from the plant begins.
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(c)iiFor each fiscal year a producer may not receive grants for more than 18 million gallons of fuel ethanol or biodiesel produced at any one registered plant.
(d)iiThe department by rule shall provide for the distribution of grant funds under this chapter to producers. The department shall make grants not less often than quarterly.
(e)iiIf the department determines that the amount of money credited to the account is not sufficient to distribute the full amount of grant funds to eligible producers as provided by this chapter for a fiscal year, the department shall proportionately reduce the amount of each grant for each gallon of fuel ethanol or biodiesel produced as necessary to continue the incentive program during the remainder of the fiscal year.
SECTIONi8K.07.iiNotwithstanding Section 16.004(c), Agriculture Code, as added by this Act, the comptroller may not make transfers from general revenue during the fiscal biennium ending August 31, 2005.
PART 9. EDUCATION
ARTICLE 9A. SCHOOL BUS SAFETY STANDARDS
SECTIONi9A.01.iiSection 34.002(a), Education Code, is amended to read as follows:
(a)iiThe Department of Public Safety, with the advice of the [General Services
Commission and the] Texas Education Agency, shall establish safety standards for
school buses used to transport students in accordance with Section 34.003 [34.002,
Education Code].
SECTIONi9A.02.iiSections 547.7015(a) and (b), Transportation Code, are amended to read as follows:
(a)iiThe department [General Services Commission, with the advice of the
department,] shall adopt and enforce rules governing the design, color, lighting and
other equipment, construction, and operation of a school bus for the transportation of
schoolchildren that is:
(1)iiowned and operated by a school district in this state; or
(2)iiprivately owned and operated under a contract with a school district in this state.
(b)iiIn adopting rules under this section, the department [General Services
Commission] shall emphasize:
(1)iisafety features; and
(2)iilong-range, maintenance-free factors.
SECTIONi9A.03.iiRules that were adopted under Section 547.7015, Transportation Code, before the effective date of this Act and that are in effect on the effective date of this Act are continued in effect as rules of the Department of Public Safety until the rules are amended, repealed, or superseded by an action of the department.
PART 10. INSURANCE
ARTICLE 10A. ABANDONMENT OF
PROCEEDS ON DEMUTUALIZATION
SECTIONi10A.01.iiSection 72.101, Property Code, is amended by adding Subsection (c) to read as follows:
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(c)iiThe three-year period leading to a presumption of abandonment of proceeds from the demutualization of an insurance company begins on the earlier of the date of the last contact with the policyholder entitled to the proceeds or the date of the demutualization.
SECTIONi10A.02.iiSection 74.301, Property Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:
(a)iiExcept as provided by Subsection (c) or (d), each holder who on June 30 holds property that is presumed abandoned under Chapter 72, 73, or 75 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.
(d)iiIf the property subject to delivery under Subsection (a) is proceeds from the demutualization of an insurance company, the holder shall deliver the property and required report to the comptroller on or before the following August 1.
[PART 11. RESERVED]
[PART 12. RESERVED]
PART 13. AD VALOREM TAXATION
ARTICLE 13A. STATE ADMINISTRATION OF
AD VALOREM TAXATION
SECTIONi13A.01.iiTitle 1, Tax Code, is amended by adding Subtitle G to read as follows:
SUBTITLE G. DETERMINATION OF SCHOOL DISTRICT PROPERTY
VALUES AND APPRAISAL DISTRICT ACCOUNTABILITY
CHAPTER 51. DETERMINATION OF SCHOOL DISTRICT PROPERTY
VALUES AND APPRAISAL DISTRICT ACCOUNTABILITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec.i51.01.iiPURPOSE. It is the policy of this state to ensure equity among taxpayers in the burden of school district taxes and among school districts in the distribution of state financial aid for public education. The purpose of this chapter is to promote that policy by providing for uniformity in local property appraisal practices and procedures and for determining property values for schools in order to distribute state funding equitably.
Sec.i51.02.iiDEFINITIONS. In this chapter:
(1)ii"Annual study" means a study conducted under Section 51.21.
(2)ii"Eligible school district" means a school district for which the commissioner has determined the following:
(A)iiin the most recent annual study, the local value is invalid under Section 51.21(c) and does not exceed the state value for the school district determined in the annual study; and
(B)iiin the annual study for each of the two years preceding the most recent annual study, the school district's local value was valid.
(3)ii"Local value" means the market value of property in a school district as determined by the appraisal district that appraises property for the school district, less the total amounts and values listed in Section 51.21(d) as determined by that appraisal district.
(4)ii"Ratio study" means a study conducted under Section 51.41.
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(5)ii"State value" means the value of property in a school district as determined in the annual study as provided by Section 51.21(c).
[Sections 51.03-51.20 reserved for expansion]
SUBCHAPTER B. DETERMINATION OF SCHOOL DISTRICT
PROPERTY VALUES
Sec.i51.21.iiDETERMINATION OF SCHOOL DISTRICT PROPERTY VALUES. (a) The commissioner shall conduct an annual study to determine the total taxable value of all property in each school district. The annual study shall determine the total taxable value of all property and of each category of property in each school district. The annual study shall also determine the productivity value of all land designated as agricultural, open-space, or timber land under Chapter 23. The commissioner shall make appropriate adjustments in the study to account for actions taken under Chapter 41, Education Code.
(b)iiIn conducting the annual study, the commissioner shall determine the taxable value of property in each school district:
(1)iiusing, if appropriate, samples selected through generally accepted sampling techniques;
(2)iiaccording to generally accepted standard valuation, statistical compilation, and analysis techniques;
(3)iiensuring that different levels of appraisal on sold and unsold property do not adversely affect the accuracy of the study; and
(4)iiusing current technology and techniques in appraising commercial personal property.
(c)iiIf after conducting the annual study the commissioner determines that the local value for a school district is valid, the local value is presumed to represent taxable value for the school district. In the absence of that presumption, taxable value for a school district is the state value for the school district determined in the annual study under Subsections (a) and (b), unless the local value exceeds the state value, in which case the taxable value for the school district is the district's local value.
(d)iiFor purposes of this section, "taxable value" means the market value of all taxable property less:
(1)iithe total dollar amount of any residence homestead exemptions lawfully granted under Section 11.13(b) or (c) in the year that is the subject of the study for each school district;
(2)iione-half of the total dollar amount of any residence homestead exemptions granted under Section 11.13(n) in the year that is the subject of the study for each school district;
(3)iithe total dollar amount of any exemptions granted before May 31, 1993, within a reinvestment zone under agreements authorized by Chapter 312;
(4)iisubject to Subsection (e), the total dollar amount of any captured appraised value of property that:
(A)iiis within a reinvestment zone created on or before May 31, 1999, or is proposed to be included within the boundaries of a reinvestment zone as the boundaries of the zone and the proposed portion of tax increment paid into the tax increment fund by a school district are described in a written notification provided by the municipality or the board of directors of the zone to the governing bodies of the
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(B)iigenerates taxes paid into a tax increment fund created under Chapter 311 under a reinvestment zone financing plan approved under Section 311.011(d) on or before September 1, 1999; and
(C)iiis eligible for tax increment financing under Chapter 311;
(5)iithe total dollar amount of any exemptions granted under Section 11.251;
(6)iithe difference between the commissioner's determination of the market value and the productivity value of land that qualifies for appraisal on the basis of its productive capacity under Chapter 23;
(7)iithe portion of the appraised value of residence homesteads of the elderly on which school district taxes are not imposed in the year that is the subject of the study, calculated as if the residence homesteads were appraised at the full value required by law;
(8)iia portion of the market value of property not otherwise fully taxable by the district at market value because of:
(A)iiaction required by statute or the constitution of this state that, if the tax rate adopted by the district is applied to it, produces an amount equal to the difference between the tax that the district would have imposed on the property if the property were fully taxable at market value and the tax that the district is actually authorized to impose on the property, if this subsection does not otherwise require that portion to be deducted; or
(B)iiaction taken by the district under Subchapter B or C, Chapter 313;
(9)iithe market value of all tangible personal property, other than manufactured homes, owned by a family or individual and not held or used for the production of income;
(10)iithe appraised value of property for which the collection of delinquent taxes is deferred under Section 33.06;
(11)iithe portion of the appraised value of property for which the collection of delinquent taxes is deferred under Section 33.065; and
(12)iithe amount by which the market value of a residence homestead to which Section 23.23 applies exceeds the appraised value of that property as calculated under that section.
(e)iiThe total dollar amount deducted in each year as required by Subsection (d)(3) in a reinvestment zone created after January 1, 1999, may not exceed the captured appraised value estimated for that year as required by Section 311.011(c)(8) in the reinvestment zone financing plan approved under Section 311.011(d) before September 1, 1999. The number of years for which the total dollar amount may be deducted under Subsection (d)(3) shall for any zone, including those created on or before January 1, 1999, be limited to the duration of the zone as specified as required by Section 311.011(c)(9) in the reinvestment zone financing plan approved under Section 311.011(d) before September 1, 1999. The total dollar amount deducted under Subsection (d)(3) for any zone, including a zone created on or before January 1, 1999, may not be increased by any reinvestment zone financing plan amendments that occur after August 31, 1999. The total dollar amount deducted under Subsection (d)(3) for
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(f)iiThe annual study shall determine the school district values as of January 1 of each study year.
(g)iiIf after conducting the annual study for the year 2004 or a subsequent year the commissioner determines that a school district is an eligible school district, for that year and the following year the taxable value for the school district is the district's local value. Not later than the first anniversary of the date of the determination that a school district is an eligible school district, the commissioner shall complete an appraisal standards review as provided by Section 51.42 of each appraisal district that appraises property for the school district.
(h)iiThe commissioner shall publish preliminary findings, listing values by school district, before February 1 of the year following the study year. Preliminary findings shall be delivered to each school district and shall be certified to the commissioner of education.
(i)iiFor purposes of Section 42.2511, Education Code, the commissioner shall certify to the commissioner of education:
(1)iia final value for each school district computed on a residence homestead exemption under Section 1-b(c), Article VIII, Texas Constitution, of $5,000; and
(2)iia final value for each school district computed on:
(A)iia residence homestead exemption under Section 1-b(c), Article VIII, Texas Constitution, of $15,000; and
(B)iithe effect of the additional limitation on tax increases under Section 1-b(d), Article VIII, Texas Constitution.
(j)iiFor purposes of Section 42.2522, Education Code, the commissioner shall certify to the commissioner of education:
(1)iia final value for each school district computed without any deduction for residence homestead exemptions granted under Section 11.13(n); and
(2)iia final value for each school district computed after deducting one-half the total dollar amount of residence homestead exemptions granted under Section 11.13(n).
Sec.i51.22.iiADMINISTRATIVE AND JUDICIAL REVIEW. (a) A school district, or a property owner whose property is included in the annual study and whose tax liability on the property is $100,000 or more, may protest the commissioner's findings by filing a petition with the commissioner. The petition must be filed not later than the 40th day after the date on which the commissioner's findings are certified to the commissioner of education and must include specific pleadings stating the legal and appraisal issues in dispute and the value claimed to be correct.
(b)iiOn receipt of a petition, the commissioner shall hold a hearing. The commissioner has the burden to prove the accuracy of the findings. Until a final decision is made by the commissioner, the taxable value of property in the district is determined, with respect to the property subject to the protest, according to the value of the property claimed by the school district or property owner, except that the value to be used while a final decision is pending may not be less than the value of the property as listed on the school district's appraisal roll for the year of the study. If after
3614 78th Legislature — Regular Session 82nd Day
(c)iiThe commissioner shall adopt procedural rules governing the conduct of protest hearings. The rules shall provide for each protesting school district and property owner to:
(1)iibe informed of the requirements for submitting a petition initiating a protest;
(2)iireceive adequate notice of a hearing;
(3)iihave an opportunity to present evidence and oral argument; and
(4)iibe given notice by the commissioner of the commissioner's decision on the hearing.
(d)iiA protesting school district may appeal a determination of protest by the commissioner to a district court in Travis County by filing a petition with the court. An appeal must be filed not later than the 30th day after the date the school district receives notice from the commissioner of the determination. Review is conducted by the court sitting without a jury. The court shall remand the determination to the commissioner if on review the court discovers that substantial rights of the school district have been prejudiced and that:
(1)iithe commissioner has acted arbitrarily and without regard to the facts; or
(2)iithe determination of the commissioner is not reasonably supported by substantial evidence introduced before the court.
Sec.i51.23.iiAUDIT. (a) On request of a school district or the commissioner of education, the commissioner may audit the total taxable value of property in a school district and may revise the annual study findings. The request for audit is limited to corrections and changes in a school district's appraisal roll that occurred after preliminary certification of the annual study findings by the commissioner.
(b)iiExcept as provided by Subsection (c), the request for audit must be filed with the commissioner not later than the third anniversary of the date of the final certification of the annual study findings.
(c)iiThe request for audit may be filed not later than the first anniversary of the date the chief appraiser certifies a change to the appraisal roll if:
(1)iithe chief appraiser corrects the appraisal roll under Section 25.25 or 42.41; and
(2)iithe change results in a material reduction in the total taxable value of property in the school district.
(d)iiThe commissioner shall certify the findings of the audit to the commissioner of education.
Sec.i51.24.iiCONFIDENTIALITY. (a) All information the commissioner obtains from a person, other than a governmental entity, under an assurance that the information will be kept confidential, in the course of conducting the annual study is confidential and may not be disclosed, except as provided by Subsection (b).
(b)iiInformation made confidential by this section may be disclosed:
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(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who gave the information to the commissioner; or
(3)iifor statistical purposes if in a form that does not identify specific property or a specific owner.
[Sections 51.25-51.40 reserved for expansion]
SUBCHAPTER C. DETERMINATION OF APPRAISAL DISTRICT
ACCOUNTABILITY
Sec.i51.41.iiAPPRAISAL DISTRICT RATIO STUDY. (a) The commissioner shall conduct a study in each appraisal district for each tax year to determine the degree of uniformity of and the median level of appraisals by the appraisal district within each major category of property for that tax year. In conducting the study, the commissioner shall apply appropriate standard statistical analysis techniques to data collected as part of the annual study of school district property values required by Section 51.21.
(b)iiThe commissioner shall publish a report of the findings of the study, including the median level of appraisal for each major category of property, the coefficient of dispersion around the median level of appraisal for each major category of property, and any other standard statistical measure that the commissioner considers appropriate. A copy of the published report of the commissioner shall be distributed to each member of the legislature and to each appraisal district.
(c)iiIn conducting a study under this section, the commissioner or the commissioner's authorized representatives may enter the premises of a business, trade, or profession and inspect the property to determine the existence and market value of property used for the production of income. An inspection under this subsection must be made during normal business hours or at a time mutually agreeable to the commissioner or the commissioner's authorized representatives and the person in control of the premises.
Sec.i51.42.iiAPPRAISAL STANDARDS REVIEW. (a) The commissioner shall review the appraisal standards, procedures, and methodology used by each appraisal district that appraises property for an eligible school district to determine compliance with generally accepted appraisal standards and practices. The commissioner by rule may establish procedures and standards for conducting the review.
(b)iiIn conducting the review, the commissioner is entitled to access to all records and reports of the appraisal district and to the assistance of the appraisal district's officers and employees.
(c)iiIf the review results in a finding that an appraisal district is not in compliance with generally accepted appraisal standards and practices, the commissioner shall deliver a report that details the commissioner's findings and recommendations for improvement to:
(1)iithe appraisal district's chief appraiser and board of directors; and
(2)iithe superintendent and board of trustees of each school district participating in the appraisal district.
(d)iiIf the appraisal district fails to comply with the recommendations in the report and the commissioner finds that the board of directors of the appraisal district failed to take remedial action before the first anniversary of the date the report was issued, the commissioner shall notify the judge of each district court in the county for
3616 78th Legislature — Regular Session 82nd Day
Sec.i51.43.iiAPPRAISAL DISTRICT PERFORMANCE AUDITS. (a) The commissioner shall audit the performance of an appraisal district if one or more of the following conditions exist according to each of two consecutive ratio studies conducted under Section 51.41, regardless of whether the prescribed condition or conditions that exist are the same for each of those studies:
(1)iithe overall median level of appraisal for all property in the district for which the commissioner determines a median level of appraisal is less than 0.75;
(2)iithe coefficient of dispersion around the overall median level of appraisal of the properties used to determine the overall median level of appraisal for all property in the district for which the commissioner determines a median level of appraisal is more than 0.30; or
(3)iithe difference between the median levels of appraisal for any two classes of property in the district for which the commissioner determines a median level of appraisal is more than 0.45.
(b)iiAt the written request of the governing bodies of a majority of the taxing units participating in an appraisal district or of a majority of the taxing units entitled to vote on the appointment of appraisal district directors, the commissioner shall audit the performance of the appraisal district. The governing bodies may request a general audit of the performance of the appraisal district or may request an audit of only one or more specific duties, practices, functions, departments, or other appraisal district matters.
(c)iiAt the written request of the owners of not less than 10 percent of the number of accounts or parcels of property in an appraisal district belonging to a single class of property, if the class constitutes at least five percent of the appraised value of taxable property within the district in the preceding year, or at the written request of the owners of property representing not less than 10 percent of the appraised value of all property in the district belonging to a single class of property, if the class constitutes at least five percent of the appraised value of taxable property in the district in the preceding year, the commissioner shall audit the performance of the appraisal district. The property owners may request a general audit of the performance of the appraisal district or may request an audit of only one or more specific duties, practices, functions, departments, or other appraisal district matters. A property owner may authorize an agent to sign a request for an audit under this subsection on the property owner's behalf. The commissioner may require a person signing a request for an audit to provide proof that the person is entitled to sign the request as a property owner or as the agent of a property owner.
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(d)iiA request for a performance audit of an appraisal district may not be made under Subsection (b) or (c) if according to each of the two most recently published ratio studies conducted by the commissioner under Section 51.41:
(1)iithe overall median level of appraisal for all property in the district for which the commissioner determines a median level of appraisal is more than 0.90 and less than 1.10;
(2)iithe coefficient of dispersion around the overall median level of appraisal of the properties used to determine the overall median level of appraisal for all property in the district for which the commissioner determines a median level of appraisal is less than 0.15; and
(3)iithe difference between the highest and lowest median levels of appraisal in the district for the classes of property for which the commissioner determines a median level of appraisal is less than 0.20.
(e)iiA request for a performance audit of an appraisal district may not be made under Subsection (b) or (c):
(1)iiduring the two years following the publication of the second of two consecutive ratio studies according to which the commissioner is required to conduct an audit of the district under Subsection (a); or
(2)iiduring the year immediately following the date the results of an audit of the district conducted by the commissioner under Subsection (a) are reported to the chief appraiser of the district.
(f)iiFor purposes of this section, "class of property" means a major kind of property for which the commissioner determines a median level of appraisal under Section 51.41.
(g)iiIn addition to the performance audits permitted by Subsections (a), (b), and (c) and the appraisal standards review required by Section 51.42, the commissioner may audit an appraisal district to analyze the effectiveness and efficiency of the policies, management, and operations of the appraisal district. The results of the audit shall be delivered in a report that details the commissioner's findings and recommendations for improvement to the appraisal district's chief appraiser and board of directors and to the governing body of each taxing unit participating in the appraisal district. The commissioner may require reimbursement by the appraisal district for some or all of the costs of the audit, not to exceed the actual costs associated with conducting the audit.
Sec.i51.44.iiADMINISTRATION OF PERFORMANCE AUDITS. (a) The commissioner shall complete an audit required by Section 51.43(a) not later than the second anniversary of the date of the publication of the second of the two ratio studies the results of which required the audit to be conducted. The commissioner shall complete an audit requested under Section 51.43(b) or (c) as soon as practicable after the request is made. The commissioner shall complete an audit conducted under Section 51.43(g) not later than the first anniversary of the date that it is initiated by the commissioner.
(b)iiThe commissioner may not audit the financial condition of an appraisal district or a district's tax collections. If the request is for an audit limited to one or more particular matters, the commissioner's audit must be limited to those matters.
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(c)iiThe commissioner must approve the specific plan for the performance audit of an appraisal district. Before approving an audit plan, the commissioner must provide any interested person an opportunity to appear before the commissioner and to comment on the proposed plan. Not later than the 20th day before the date the commissioner considers the plan for an appraisal district performance audit, the commissioner must notify the presiding officer of the appraisal district's board of directors that the commissioner intends to consider the plan. The notice must include the time, date, and location of the meeting to consider the plan. Immediately after receiving the notice, the presiding officer shall deliver a copy of the notice to the other members of the appraisal district's board of directors.
(d)iiIn conducting a general audit, the commissioner shall consider and report on:
(1)iithe extent to which the district complies with applicable law and generally accepted standards of appraisal or other relevant practice;
(2)iithe uniformity and level of appraisal of major kinds of property and the cause of any significant deviation from ideal uniformity and equality of appraisal of major kinds of property;
(3)iiduplication of effort and efficiency of operation;
(4)iithe general efficiency, quality of service, and qualification of appraisal district personnel; and
(5)iiexcept as otherwise provided by Subsection (b), any other matter included in the request for the audit.
(e)iiIn conducting the audit, the commissioner is entitled to have access at all times to the books, appraisal and other records, reports, vouchers, and other information, confidential or not, of the appraisal district. The commissioner may require the assistance of appraisal district officers and employees that does not interfere significantly with the ordinary functions of the appraisal district. The commissioner may rely on any previous analysis the commissioner has made relating to the appraisal district if the previous analysis is useful or relevant to the audit.
(f)iiThe commissioner shall report the results of the audit in writing to the governing body of each taxing unit that participates in the appraisal district, to the chief appraiser, and to the presiding officer of the appraisal district's board of directors. If the audit was requested under Section 51.43(c), the commissioner shall also provide a report to a representative of the property owners who requested the audit.
(g)iiIf the audit is required or requested under Section 51.43(a) or (b), the appraisal district shall reimburse the commissioner for the costs incurred in conducting the audit and making the commissioner's report of the audit. The costs shall be allocated among the taxing units participating in the district in the same manner as an operating expense of the district. If the audit is requested under Section 51.43(c), the property owners who requested the audit shall reimburse the commissioner for the costs incurred in conducting the audit and making the report of the audit and shall allocate the costs among those property owners in proportion to the appraised value of each property owner's property in the district or on any other basis agreed to by the property owners. If the audit confirms that the median level of appraisal for a class of property exceeds 1.10 or that the median level of appraisal for a class of property varies at least 10 percent from the overall median level of appraisal
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(h)iiAt any time after the request for an audit is made, the commissioner may discontinue the audit in whole or in part if requested to do so by:
(1)iithe governing bodies of a majority of the taxing units participating in the district, if the audit was requested by a majority of those units;
(2)iithe governing bodies of a majority of the taxing units entitled to vote on the appointment of appraisal district directors, if the audit was requested by a majority of those units; or
(3)iiif the audit was requested under Section 51.43(c), by the property owners who requested the audit.
(i)iiThe commissioner by rule may adopt procedures, audit standards, and forms for the administration of performance audits.
Sec.i51.45.iiADMINISTRATIVE PROVISIONS. (a) The commissioner may inspect the records or other materials of an appraisal district or taxing unit, including relevant records and materials in the possession or control of a consultant, advisor, or expert hired by the appraisal district or taxing unit, for the purpose of conducting an annual study, ratio study, appraisal standards review, or performance audit required or authorized by this chapter.
(b)iiOn request of the commissioner, the appraisal district or administrative officer of the taxing unit shall produce the records or other materials in the form and manner prescribed by the commissioner.
(c)iiThe commissioner shall prescribe a uniform record system to be used by all appraisal districts for the purpose of submitting data to be used in the annual study and ratio study. The record system shall include a compilation of information concerning sales of real property within the boundaries of the appraisal district. The sales information maintained in the uniform record system shall be submitted annually in a form prescribed by the commissioner.
SECTIONi13A.02.iiSection 13.051(c), Education Code, is amended to read as follows:
(c)iiTerritory that does not have residents may be detached from a school district and annexed to another school district if:
(1)iithe total taxable value of the property in the territory according to the most recent certified appraisal roll for each school district is not greater than:
(A)iifive percent of the district's taxable value of all property in that
district as determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code; and
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(B)ii$5,000 property value per student in average daily attendance as determined under Section 42.005; and
(2)iithe school district from which the property will be detached does not own any real property located in the territory.
SECTIONi13A.03.iiSection 13.231(b), Education Code, is amended to read as follows:
(b)iiIn this section, "taxable value" has the meaning assigned by Section 51.21,
Tax [403.302, Government] Code.
SECTIONi13A.04.iiSection 41.001(2), Education Code, is amended to read as follows:
(2)ii"Wealth per student" means the taxable value of property, as determined
under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403, Government]
Code, divided by the number of students in weighted average daily attendance.
SECTIONi13A.05.iiSection 41.002(f), Education Code, is amended to read as follows:
(f)iiFor purposes of Subsection (e), a school district's effective tax rate is
determined by dividing the total amount of taxes collected by the district for the
applicable school year less any amounts paid into a tax increment fund under Chapter
311, Tax Code, by the quotient of the district's taxable value of property, as
determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403,
Government] Code, divided by 100.
SECTIONi13A.06.iiSection 41.005, Education Code, is amended to read as follows:
Sec.i41.005.ii[COMPTROLLER AND APPRAISAL DISTRICT]
COOPERATION. The chief appraiser of each appraisal district and the commissioner
of the State Board on Property Valuation [comptroller] shall cooperate with the
commissioner and school districts in implementing this chapter.
SECTIONi13A.07.iiSection 41.202(a), Education Code, is amended to read as follows:
(a)iiFor purposes of this subchapter, the taxable value of an individual parcel or
other item of property and the total taxable value of property in a school district
resulting from the detachment of property from or annexation of property to that
district is determined by applying the appraisal ratio for the appropriate category of
property determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code, for the preceding tax year to the taxable value of the
detached or annexed property determined under Title 1, Tax Code, for the preceding
tax year.
SECTIONi13A.08.iiSections 42.106 and 42.2511, Education Code, are amended to read as follows:
Sec.i42.106.iiADJUSTED PROPERTY VALUE FOR DISTRICTS NOT OFFERING ALL GRADE LEVELS. For purposes of this chapter, the taxable value of property of a school district that contracts for students residing in the district to be educated in another district under Section 25.039(a) is adjusted by applying the formula:
Friday, May 30, 2003 SENATE JOURNAL 3621
ADPV = DPV - (TN/.015)
where:
"ADPV" is the district's adjusted taxable value of property;
"DPV" is the taxable value of property in the district for the preceding tax year
determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403,
Government] Code; and
"TN" is the total amount of tuition required to be paid by the district under Section 25.039 for the school year for which the adjustment is made.
Sec.i42.2511.iiADDITIONAL STATE AID FOR HOMESTEAD EXEMPTION.
(a) Notwithstanding any other provision of this chapter, a school district is entitled to
additional state aid to the extent that state aid under this chapter based on the
determination of the school district's taxable value of property as provided under
Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, does
not fully compensate the district for ad valorem tax revenue lost due to the increase in
the homestead exemption under Section 1-b(c), Article VIII, Texas Constitution, as
proposed by H.J.R. No. 4, 75th Legislature, Regular Session, 1997, and the additional
limitation on tax increases under Section 1-b(d), Article VIII, Texas Constitution, as
proposed by H.J.R. No. 4, 75th Legislature, Regular Session, 1997.
(b)iiThe commissioner, using information provided by the commissioner of the
State Board on Property Valuation [comptroller], shall compute the amount of
additional state aid to which a district is entitled under this section. A determination
by the commissioner under this section is final and may not be appealed.
SECTIONi13A.09.iiSections 42.252(a) and (c), Education Code, are amended to read as follows:
(a)iiEach school district's share of the Foundation School Program is determined by the following formula:
LFA = TR X DPV
where:
"LFA" is the school district's local share;
"TR" is a tax rate which for each hundred dollars of valuation is an effective tax rate of $0.86; and
"DPV" is the taxable value of property in the school district for the preceding tax
year determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403,
Government] Code.
(c)iiAppeals of district values shall be held pursuant to Section 51.22, Tax
[403.303, Government] Code.
SECTIONi13A.10.iiSections 42.2522(a) and (d), Education Code, are amended to read as follows:
(a)iiIn any school year, the commissioner may not provide funding under this
chapter based on a school district's taxable value of property computed in accordance
with Section 51.21(d)(2), Tax [403.302(d)(2), Government] Code, unless:
(1)iifunds are specifically appropriated for purposes of this section; or
(2)iithe commissioner determines that the total amount of state funds appropriated for purposes of the Foundation School Program for the school year exceeds the amount of state funds distributed to school districts in accordance with Section 42.253 based on the taxable values of property in school districts computed in
3622 78th Legislature — Regular Session 82nd Day
accordance with Section 51.21(d), Tax [403.302(d), Government] Code, without any
deduction for residence homestead exemptions granted under Section 11.13(n), Tax
Code.
(d)iiIf the commissioner determines that the amount of funds available under
Subsection (a)(1) or (2) does not at least equal the total amount of state funding to
which districts would be entitled if state funding under this chapter were based on the
taxable values of property in school districts computed in accordance with Section
51.21(d)(2), Tax [403.302(d)(2), Government] Code, the commissioner may, to the
extent necessary, provide state funding based on a uniform lesser fraction of the
deduction under Section 51.21(d)(2), Tax [403.302(d)(2), Government] Code.
SECTIONi13A.11.iiSection 42.253(h), Education Code, is amended to read as follows:
(h)iiIf the legislature fails during the regular session to enact the transfer and
appropriation proposed under Subsection (f) and there are not funds available under
Subsection (j), the commissioner shall reduce the total amount of state funds allocated
to each district by an amount determined by a method under which the application of
the same number of cents of increase in tax rate in all districts applied to the taxable
value of property of each district, as determined under Subchapter B, Chapter 51, Tax
[Subchapter M, Chapter 403, Government] Code, results in a total levy equal to the
total reduction. The following fiscal year, a district's entitlement under this section is
increased by an amount equal to the reduction made under this subsection.
SECTIONi13A.12.iiSection 42.254, Education Code, is amended to read as follows:
Sec.i42.254.iiESTIMATES REQUIRED. (a) Not later than October 1 of each even-numbered year:
(1)iithe agency shall submit to the legislature an estimate of the tax rate and student enrollment of each school district for the following biennium; and
(2)iithe commissioner of the State Board on Property Valuation [comptroller]
shall submit to the legislature an estimate of the total taxable value of all property in
the state as determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code, for the following biennium.
(b)iiThe agency and the commissioner of the State Board on Property Valuation
[comptroller] shall update the information provided to the legislature under
Subsection (a) not later than March 1 of each odd-numbered year.
SECTIONi13A.13.iiSection 42.257(a), Education Code, is amended to read as follows:
(a)iiIf the final determination of an appeal under Chapter 42, Tax Code, results in
a reduction in the taxable value of property that exceeds five percent of the total
taxable value of property in the school district for the same tax year determined under
Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, the
commissioner shall request the commissioner of the State Board on Property
Valuation [comptroller] to adjust the [its] taxable property value findings for that year
consistent with the final determination of the appraisal appeal.
SECTIONi13A.14.iiSection 42.302(a), Education Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3623
(a)iiEach school district is guaranteed a specified amount per weighted student in state and local funds for each cent of tax effort over that required for the district's local fund assignment up to the maximum level specified in this subchapter. The amount of state support, subject only to the maximum amount under Section 42.303, is determined by the formula:
GYA = (GL X WADA X DTR X 100) - LR
where:
"GYA" is the guaranteed yield amount of state funds to be allocated to the district;
"GL" is the dollar amount guaranteed level of state and local funds per weighted student per cent of tax effort, which is $27.14 or a greater amount for any year provided by appropriation;
"WADA" is the number of students in weighted average daily attendance, which is calculated by dividing the sum of the school district's allotments under Subchapters B and C, less any allotment to the district for transportation, any allotment under Section 42.158, and 50 percent of the adjustment under Section 42.102, by the basic allotment for the applicable year;
"DTR" is the district enrichment tax rate of the school district, which is
determined by subtracting the amounts specified by Subsection (b) from the total
amount of maintenance and operations taxes collected by the school district for the
applicable school year and dividing the difference by the quotient of the district's
taxable value of property as determined under Subchapter B, Chapter 51, Tax
[Subchapter M, Chapter 403, Government] Code, or, if applicable, under Section
42.2521, divided by 100; and
"LR" is the local revenue, which is determined by multiplying "DTR" by the
quotient of the district's taxable value of property as determined under Subchapter B,
Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
under Section 42.2521, divided by 100.
SECTIONi13A.15.iiSection 46.003(a), Education Code, is amended to read as follows:
(a)iiFor each year, except as provided by Sections 46.005 and 46.006, a school district is guaranteed a specified amount per student in state and local funds for each cent of tax effort, up to the maximum rate under Subsection (b), to pay the principal of and interest on eligible bonds issued to construct, acquire, renovate, or improve an instructional facility. The amount of state support is determined by the formula:
FYA = (FYL X ADA X BTR X 100) - (BTR X (DPV/100))
where:
"FYA" is the guaranteed facilities yield amount of state funds allocated to the district for the year;
"FYL" is the dollar amount guaranteed level of state and local funds per student per cent of tax effort, which is $35 or a greater amount for any year provided by appropriation;
"ADA" is the greater of the number of students in average daily attendance, as determined under Section 42.005, in the district or 400;
3624 78th Legislature — Regular Session 82nd Day
"BTR" is the district's bond tax rate for the current year, which is determined by
dividing the amount budgeted by the district for payment of eligible bonds by the
quotient of the district's taxable value of property as determined under Subchapter B,
Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
Section 42.2521, divided by 100; and
"DPV" is the district's taxable value of property as determined under Subchapter
B, Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
Section 42.2521.
SECTIONi13A.16.iiSection 46.006(g), Education Code, is amended to read as follows:
(g)iiIn this section, "wealth per student" means a school district's taxable value of
property as determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code, or, if applicable, Section 42.2521, divided by the district's
average daily attendance as determined under Section 42.005.
SECTIONi13A.17.iiSection 46.032(a), Education Code, is amended to read as follows:
(a)iiEach school district is guaranteed a specified amount per student in state and local funds for each cent of tax effort to pay the principal of and interest on eligible bonds. The amount of state support, subject only to the maximum amount under Section 46.034, is determined by the formula:
EDA = (EDGL X ADA X EDTR X 100) - (EDTR X (DPV/100))
where:
"EDA" is the amount of state funds to be allocated to the district for assistance with existing debt;
"EDGL" is the dollar amount guaranteed level of state and local funds per student per cent of tax effort, which is $35 or a greater amount for any year provided by appropriation;
"ADA" is the number of students in average daily attendance, as determined under Section 42.005, in the district;
"EDTR" is the existing debt tax rate of the district, which is determined by
dividing the amount budgeted by the district for payment of eligible bonds by the
quotient of the district's taxable value of property as determined under Subchapter B,
Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
under Section 42.2521, divided by 100; and
"DPV" is the district's taxable value of property as determined under Subchapter
B, Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
under Section 42.2521.
SECTIONi13A.18.iiSections 825.405(h) and (i), Government Code, are amended to read as follows:
(h)iiThis section does not apply to state contributions for members employed by a school district in a school year if the district's effective tax rate for maintenance and operation revenues for the tax year that ended in the preceding school year equals or exceeds 125 percent of the statewide average effective tax rate for school district maintenance and operation revenues for that tax year. For a tax year, the statewide average effective tax rate for school district maintenance and operation revenues is the tax rate that, if applied to the statewide total appraised value of taxable property for
Friday, May 30, 2003 SENATE JOURNAL 3625
(i)iiNot later than the seventh day after the final date the commissioner of the
State Board on Property Valuation [comptroller] certifies to the commissioner of
education changes to the property value study conducted under Section 51.21, Tax
Code [Subchapter M, Chapter 403], the commissioner of the State Board on Property
Valuation [comptroller] shall certify to the Teacher Retirement System of Texas:
(1)iithe effective tax rate for school district maintenance and operation revenues for each school district in the state for the immediately preceding tax year; and
(2)iithe statewide average effective tax rate for school district maintenance and operation revenues for the immediately preceding tax year.
SECTIONi13A.19.iiSection 61.040, Health and Safety Code, is amended to read as follows:
Sec.i61.040.iiTAX INFORMATION. (a) The commissioner of the State Board
on Property Valuation [comptroller] shall give the department information relating to[:
[(1)]iithe taxable value of property taxable by each county and each county's
applicable general revenue tax levy for the relevant period.
(b)iiThe comptroller shall give the department information relating to[; and
[(2)]iithe amount of sales and use tax revenue received by each county for
the relevant period.
SECTIONi13A.20.iiSection 1152.204(c), Occupations Code, is amended to conform to the changes in terminology made by Chapter 836, Acts of the 77th Legislature, Regular Session, 2001, and is further amended to read as follows:
(c)iiThe executive director [commissioner] may recognize an educational
program or course:
(1)iirelated to property tax consulting services; and
(2)iioffered or sponsored by a public provider or a recognized private provider, including:
(A)iithe commissioner of the State Board on Property Valuation
[comptroller];
(B)iithe State Bar of Texas;
(C)iithe Texas Real Estate Commission;
(D)iian institution of higher education that meets program and accreditation standards comparable to those for public institutions of higher education as determined by the Texas Higher Education Coordinating Board; or
(E)iia nonprofit and voluntary trade association, institute, or organization:
(i)iiwhose membership consists primarily of persons who represent property owners in property tax or transactional tax matters;
(ii)iithat has written experience and examination requirements for membership or for granting professional designation to its members; and
(iii)iithat subscribes to a code of professional conduct or ethics.
SECTIONi13A.21.iiSection 1.04, Tax Code, is amended by amending Subdivision (19) and adding Subdivision (20) to read as follows:
3626 78th Legislature — Regular Session 82nd Day
(19)ii"Commissioner" ["Comptroller"] means the commissioner of the State
Board on Property Valuation [Comptroller of Public Accounts of the State of Texas].
(20)ii"Board" means the State Board on Property Valuation.
SECTIONi13A.22.iiSection 1.111(h), Tax Code, is amended to read as follows:
(h)iiThe commissioner [comptroller] shall prescribe forms and adopt rules to
facilitate compliance with this section. The commissioner [comptroller] shall include
on any form used for designation of an agent for a single-family residential property
in which the property owner resides the following statement in boldfaced type:
"In some cases, you may want to contact your appraisal district or other local taxing units for free information and/or forms concerning your case before designating an agent."
SECTIONi13A.23.iiChapter 5, Tax Code, is amended by adding Sections 5.01 and 5.02 to read as follows:
Sec.i5.01.iiSTATE BOARD ON PROPERTY VALUATION. (a) The State Board on Property Valuation is established. The board consists of five members appointed by the governor.
(b)iiMembers of the board hold office for terms of six years, with the terms of one or two members expiring March 1 of each odd-numbered year.
(c)iiTo be eligible to serve on the board, a person must:
(1)iihave been a resident of this state for at least 10 years; and
(2)iipossess knowledge, skill, and experience in property tax administration, property appraisal, or school finance.
(d)iiA person is not eligible to serve as a member of the board if the person or the person's spouse:
(1)iiis registered with or certified by the Board of Tax Professional Examiners;
(2)iiis employed by or participates in the management of a school district, an appraisal district, the office of an assessor or collector, or a business entity or other organization that is substantially and directly affected by the activities of the board or that does substantial business with the board; or
(3)iiuses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses.
(e)iiAppointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
(f)iiThe governor shall designate one of the members of the board to serve as presiding officer of the board. The presiding officer serves in that capacity for a term of two years expiring on March 1 of an odd-numbered year.
(g)iiThe board shall maintain its principal office in Austin.
(h)iiThe board shall meet at least once in each calendar quarter and shall meet at other times at the call of the presiding officer or as provided by the rules of the board.
(i)iiThe board is subject to the open meetings law, Chapter 551, Government Code, and the administrative procedure law, Chapter 2001, Government Code.
Friday, May 30, 2003 SENATE JOURNAL 3627
(j)iiA member of the board may not receive compensation for service on the board but is entitled to reimbursement for actual and necessary expenses incurred in performing functions as a board member, subject to any applicable limitation on reimbursement provided by the General Appropriations Act.
(k)iiIt is a ground for removal from the board if a member:
(1)iiviolates a prohibition established by Subsection (d);
(2)iicannot because of illness or disability discharge the member's duties for a substantial part of the term for which the member is appointed; or
(3)iiis absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
Sec.i5.02.iiBOARD PERSONNEL AND OPERATIONS. (a) The board shall employ the commissioner, who shall administer board policies and perform all duties as provided by law.
(b)iiThe commissioner shall employ and supervise professional, clerical, and other personnel necessary to perform all duties as required by law, board policy, and direction of the board or commissioner.
(c)iiThe commissioner shall provide to board staff, as often as necessary, information regarding their qualifications for employment under this chapter and their responsibilities under applicable laws relating to standards of conduct for state employees.
(d)iiThe comptroller, by interagency contract, may provide support to the board for payroll, human resources, computer maintenance and technical assistance, printing and distribution of publications, and similar administrative services.
SECTIONi13A.24.iiSection 5.03, Tax Code, is amended to read as follows:
Sec.i5.03.iiPOWERS AND DUTIES GENERALLY.ii(a)iiThe board
[comptroller] shall adopt rules establishing minimum standards for the administration
and operation of an appraisal district. The minimum standards may vary according to
the number of parcels and the kinds of property the district is responsible for
appraising.
(b)iiThe board [comptroller] may require from each district engaged in
appraising property for taxation an annual report on a form prescribed by the
commissioner [comptroller] on the administration and operation of the appraisal
office.
(c)iiThe board [comptroller] may contract with consultants to assist in
performance of the duties imposed by this chapter.
(d)iiThe board is responsible for ensuring that the commissioner performs the duties required by law of the commissioner.
(e)iiThe board has the powers necessary to carry out its powers and duties under this title.
(f)iiThe board may:
(1)iiadopt rules necessary to carry out the board's powers and duties under this title;
(2)iisue and be sued;
(3)iienter into contracts and other necessary instruments;
(4)iiimpose administrative fees and charges for the costs of publications;
3628 78th Legislature — Regular Session 82nd Day
(5)iipurchase liability insurance covering the board and employees and agents of the board; and
(6)iiestablish other policies, procedures, and eligibility criteria necessary to carry out the board's powers and duties under this title.
SECTIONi13A.25.iiSection 5.04(a), Tax Code, is amended to read as follows:
(a)iiThe commissioner [comptroller] shall consult and cooperate with the Board
of Tax Professional Examiners or any successor agency responsible for certifying tax
professionals in this state in setting standards for and approving curricula and
materials for use in training and educating appraisers and assessor-collectors, and the
commissioner [comptroller] may cooperate with the board or with other public
agencies, educational institutions, or private organizations in sponsoring courses of
instruction and training programs.
SECTIONi13A.26.iiSections 5.041(a), (c), (d), and (f), Tax Code, are amended to read as follows:
(a)iiThe board [comptroller] shall:
(1)iiapprove curricula and provide materials for use in training and educating members of an appraisal review board; and
(2)iisupervise a course for training and education of appraisal review board members and issue certificates indicating course completion.
(c)iiThe board [comptroller] may contract with service providers to assist with
the duties imposed under Subsection (a), but the course required may not be provided
by an appraisal district or a taxing unit. The board [comptroller] may assess a fee to
recover a portion of the costs incurred for the training course, but the fee may not
exceed $50 per person trained.
(d)iiThe course material for the course required under Subsection (a) is the
[comptroller's] Appraisal Review Board Manual prepared by the commissioner in use
on the effective date of this section. The manual shall be updated regularly. It may be
revised on request, in writing, to the board [comptroller]. The revision language must
be approved on the unanimous agreement of a committee selected by the board
[comptroller] and representing, equally, taxpayers and chief appraisers. The person
requesting the revision shall pay the costs of mediation if the board [comptroller]
determines that mediation is required.
(f)iiThe commissioner [comptroller] may not advise a property owner, a property
owner's agent, an appraisal district, or an appraisal review board on a matter that the
commissioner [comptroller] knows is the subject of a protest to the appraisal review
board.
SECTIONi13A.27.iiSections 5.05(a), (b), and (c), Tax Code, are amended to read as follows:
(a)iiThe commissioner [comptroller] shall prepare and issue:
(1)iia general appraisal manual;
(2)iispecial appraisal manuals;
(3)iicost, price, and depreciation schedules, with provision for inserting local market index factors and with a standard procedure for determining local market index factors;
(4)iinews and reference bulletins;
(5)iiannotated digests of all laws relating to property taxation; and
Friday, May 30, 2003 SENATE JOURNAL 3629
(6)iia handbook of all rules promulgated by the board or commissioner
[comptroller] relating to the property tax and its administration.
(b)iiThe commissioner [comptroller] shall revise or supplement all materials
periodically as necessary to keep them current.
(c)iiThe commissioner [comptroller] shall provide without charge one copy of all
materials to officials of local government who are responsible for administering the
property tax system. If a local government official requests more than one copy, the
commissioner [comptroller] may charge a reasonable fee to offset the costs of printing
and distributing the materials. The commissioner [comptroller] shall make the
materials available to members of the public but may charge a reasonable fee to offset
the costs of printing and distributing the materials.
SECTIONi13A.28.iiSections 5.06, 5.07, 5.08, 5.09, 5.101, 5.14, and 5.16, Tax Code, are amended to read as follows:
Sec.i5.06.iiEXPLANATION OF TAXPAYER REMEDIES. (a) The
commissioner [comptroller] shall prepare and publish a pamphlet explaining the
remedies available to dissatisfied taxpayers and the procedures to be followed in
seeking remedial action. The commissioner [comptroller] shall include in the
pamphlet advice on preparing and presenting a protest.
(b)iiThe commissioner [comptroller] shall provide without charge a reasonable
number of copies of the pamphlet to any person on request. The commissioner
[comptroller] may charge a person who requests multiple copies of the pamphlet a
reasonable fee to offset the costs of printing and distributing those copies. The
commissioner [comptroller] at its discretion shall determine the number of copies that
a person may receive without charge.
Sec.i5.07.iiPROPERTY TAX FORMS AND RECORDS SYSTEMS. (a) The
commissioner [comptroller] shall prescribe the contents of all forms necessary for the
administration of the property tax system and on request shall furnish sufficient copies
of model forms of each type to the appropriate local officials. The commissioner
[comptroller] may require reimbursement for the costs of printing and distributing the
forms.
(b)iiThe commissioner [comptroller] shall make the contents of the forms
uniform to the extent practicable but may prescribe or approve additional or substitute
forms for special circumstances.
(c)iiThe commissioner [comptroller] shall also prescribe a uniform record system
to be used by all offices appraising property for tax purposes.
Sec.i5.08.iiPROFESSIONAL AND TECHNICAL ASSISTANCE. (a) The
commissioner [comptroller] may provide professional and technical assistance on
request in appraising property, installing or updating tax maps, purchasing equipment,
developing recordkeeping systems, or performing other appraisal activities. The
commissioner [comptroller] may also provide professional and technical assistance on
request to an appraisal review board. The commissioner [comptroller] may require
reimbursement for the costs of providing the assistance.
(b)iiThe commissioner [comptroller] may provide information to and consult
with persons actively engaged in appraising property for tax purposes about any
matter relating to property taxation without charge.
3630 78th Legislature — Regular Session 82nd Day
Sec.i5.09.iiANNUAL REPORTS. (a) The commissioner [comptroller] shall
publish an annual report of the operations of the appraisal districts. The report shall
include for each appraisal district, each county, and each school district and may
include for other taxing units the total appraised values, assessed values, and taxable
values of taxable property by class of property, the assessment ratio, and the tax rate.
(b)iiThe commissioner [comptroller] shall deliver a copy of each annual report
published under Subsection (a) of this section to the governor, the lieutenant governor,
and each member of the legislature.
Sec.i5.101.iiTECHNICAL ADVISORY COMMITTEE. (a) The board
[comptroller] shall appoint a technical advisory committee for the purpose of
providing professional and practical expertise to the board [comptroller] and to review
and comment on the methodology used by the commissioner [comptroller] to conduct
the annual studies required by Section 51.21 and the ratio studies required by Section
51.41 [Section 5.10 of this code and by Section 403.302, Government Code]. A
member of the committee serves at the will of the board [comptroller].
(b)iiThe committee shall:
(1)iireview the methodology used by the commissioner [comptroller] to
conduct the studies described in Subsection (a);
(2)iimake an annual report to the commissioner [comptroller] that includes
the committee's findings and recommendations relating to the methodology used to
conduct the studies; and
(3)iimeet as often as necessary to perform its duties, but not less often than semiannually.
(c)iiThe board [comptroller] shall appoint the committee to provide for a
balanced representation of the general public and of professionals affiliated with the
entities affected by the studies.
(d)iiEach member of the committee must have expertise sufficient to determine
the accuracy of the [annual] studies and the appropriateness of the methods used to
develop the findings of the studies.
(e)iiThe board [comptroller] shall specify the committee's purpose, powers, and
duties and shall require the committee to report to the board [comptroller] in a manner
specified by the board [comptroller] relating to the committee's activities and the
results of its work.
(f)iiA member of the committee may receive compensatory per diem for serving
on the committee and is entitled to reimbursement for transportation expenses and the
per diem meals and lodging allowance as provided for the board [comptroller] and for
commission members in the General Appropriations Act.
(g)iiThe commissioner [comptroller] shall make the committee's annual report
available to the public on request.
Sec.i5.14.iiPUBLIC ACCESS, INFORMATION, AND COMPLAINTS. (a) The
board [comptroller] shall develop and implement policies that provide the public with
a reasonable opportunity to submit information on any property tax issue under the
jurisdiction of the board [comptroller].
Friday, May 30, 2003 SENATE JOURNAL 3631
(b)iiThe board [comptroller] shall prepare and maintain a written plan that
describes how a person who does not speak English or who has a physical, mental, or
developmental disability may be provided reasonable access to the board's
[comptroller's] programs.
(c)iiThe board [comptroller] shall prepare information of public interest
describing the property tax functions of the office of the board [comptroller] and the
board's [comptroller's] procedures by which complaints are filed with and resolved by
the board [comptroller]. The board [comptroller] shall make the information available
to the public and appropriate state agencies.
(d)iiIf a written complaint is filed with the board [comptroller] that the board
[comptroller] has authority to resolve, the board [comptroller], at least quarterly and
until final disposition of the complaint, shall notify the parties to the complaint of the
status of the complaint unless notice would jeopardize an undercover investigation.
(e)iiThe board [comptroller] shall keep an information file about each complaint
filed with the board [comptroller] that the board [comptroller] has authority to resolve.
Sec.i5.16.iiADMINISTRATIVE PROVISIONS. (a) The commissioner
[comptroller] may inspect the records or other materials of an appraisal office or
taxing unit, including the relevant records and materials in the possession or control of
a consultant, advisor, or expert hired by the appraisal office or taxing unit, for the
purpose of[:
[(1)]iiestablishing, reviewing, or evaluating the value of or an appraisal of
any property[; or
[(2)iiconducting a study, review, or audit required by Section 5.10 or 5.102
or by Section 403.302, Government Code].
(b)iiOn request of the commissioner [comptroller], the chief appraiser or
administrative head of the taxing unit shall produce the materials in the form and
manner prescribed by the commissioner [comptroller].
SECTIONi13A.29.iiSection 6.025(a), Tax Code, is amended to read as follows:
(a)iiThe chief appraisers of two or more appraisal districts that have boundaries that include any part of the same territory shall enter into a written understanding that, with respect to the property located in the territory in which each of the districts has appraisal jurisdiction:
(1)iipermits each appraiser to have access to and use information appropriate to appraisals, including a record of an exemption application, rendition, or other property owner report;
(2)iieliminates differences in the information in appraisal records of the districts, including information relating to ownership of property, the description of property, and the physical characteristics of property; and
(3)iicontains the form of a written advisory prescribed by the commissioner
[comptroller] informing the owners of property that reports and other documents
required of the owners must be filed with or sent to each appraisal district and that the
owners should consider sending any other document relating to the property to each
appraisal district.
SECTIONi13A.30.iiSection 6.235(a), Tax Code, is amended to read as follows:
3632 78th Legislature — Regular Session 82nd Day
(a)iiDuring each full term of office, a county assessor-collector of a county with a
population of 1,000,000 or more shall complete 64 or more classroom hours of
instruction that relate to the duties of the office and that are accredited by the Board of
Tax Professional Examiners, the commissioner [division of the office of comptroller
with responsibility for property taxes], the division of the Texas Department of
Transportation with responsibility for motor vehicles, or the secretary of state as
continuing education credits for the office of county assessor-collector.
SECTIONi13A.31.iiSections 6.28(b), (d), and (e), Tax Code, are amended to read as follows:
(b)iiThe bond for state taxes must be payable to the governor and his successors
in office in an amount equal to five percent of the net state collections from motor
vehicle sales and use taxes and motor vehicle registration fees in the county during the
year ending August 31 preceding the date bond is given, except that the amount of
bond may not be less than $2,500 or more than $100,000. To be effective, the bond
must be approved by the commissioners court of the county and the commissioner
[state comptroller of public accounts].
(d)iiThe commissioner [state comptroller of public accounts] or the
commissioners court of the county may require a new bond for state taxes at any time.
The commissioners court may require a new bond for county taxes at any time.
However, the total amount of state bonds or county bonds required of an
assessor-collector may not exceed $100,000 at one time. The commissioners court
shall suspend the assessor-collector from office and begin removal proceedings if the
assessor-collector [he] fails to give new bond within a reasonable time after demand.
(e)iiThe assessor-collector's official oath and bonds for state and county taxes
shall be recorded in the office of the county clerk, and the county judge shall submit
the bond for state taxes to the commissioner [state comptroller of public accounts].
SECTIONi13A.32.iiSection 6.412(c), Tax Code, is amended to read as follows:
(c)iiA person is ineligible to serve on the appraisal review board if the person is a
member of the board of directors, an officer, or employee of the appraisal district, an
employee of the commissioner [comptroller], or a member of the governing body,
officer, or employee of a taxing unit.
SECTIONi13A.33.iiSection 11.11(b), Tax Code, is amended to read as follows:
(b)iiLand owned by the Permanent University Fund is taxable for county
purposes. Any notice required by Section 25.19 of this code shall be sent to the
commissioner [comptroller], and the commissioner [comptroller] shall appear in
behalf of the state in any protest or appeal relating to taxation of Permanent University
Fund land.
SECTIONi13A.34.iiSection 11.182(f), Tax Code, as added by Chapter 842, Acts of the 77th Legislature, Regular Session, 2001, is relettered and amended to read as follows:
(i)i[(f)]iiIf any property owned by an organization receiving an exemption under
this section has been acquired or sold during the preceding year, such organization
shall file by March 31 of the following year with the chief appraiser in the county in
which the relevant property is located, on a form promulgated by the commissioner
[comptroller of public accounts], a list of such properties acquired or sold during the
preceding year.
Friday, May 30, 2003 SENATE JOURNAL 3633
SECTIONi13A.35.iiSections 11.252(c), (d), (i), and (j), Tax Code, are amended to read as follows:
(c)iiThe commissioner [comptroller] by rule shall establish exemption
application requirements and appropriate procedures to determine whether a motor
vehicle subject to a lease qualifies for an exemption under Subsection (a).
(d)iiIn connection with the requirements and procedures under Subsection (c),
the commissioner [comptroller] by rule shall adopt a form to be completed by the
lessee of a motor vehicle for which the owner of the vehicle may apply for an
exemption under Subsection (a). The form shall require the lessee to provide the
lessee's name, address, and driver's license or personal identification certificate
number and to certify under oath that the lessee does not hold the vehicle for the
production of income and that the vehicle is used primarily for activities that do not
involve the production of income. The commissioner [comptroller] shall include on
the form a notice of the penalties prescribed by Section 37.10, Penal Code, for making
a false statement on the form.
(i)iiIn addition to the requirements of Subsections (c) and (d), the commissioner
[comptroller] by rule shall prescribe a property report form to be completed by the
lessor describing the leased motor vehicles that the lessor owns. The property report
form shall require the lessor to list each leased vehicle the lessor owns on January 1,
to provide the year, make, model, and vehicle identification number of each leased
vehicle, and to provide the name of the lessee, the address at which the vehicle is kept,
and an indication of whether the lessee has designated the vehicle as not held for the
production and not used for the production of income.
(j)iiThe lessor shall provide the chief appraiser with the completed property
report form adopted by the commissioner [comptroller] in the manner provided by
Subchapter B, Chapter 22.
SECTIONi13A.36.iiSection 11.26(e), Tax Code, is amended to read as follows:
(e)iiFor each school district in an appraisal district, the chief appraiser shall
determine the portion of the appraised value of residence homesteads of the elderly on
which school district taxes are not imposed in a tax year because of the limitation on
tax increases imposed by this section. That portion is calculated by determining the
taxable value that, if multiplied by the tax rate adopted by the school district for the
tax year, would produce an amount equal to the amount of tax that would have been
imposed by the school district on residence homesteads of the elderly if the limitation
on tax increases imposed by this section were not in effect, but that was not imposed
because of that limitation. The chief appraiser shall determine that taxable value and
certify it to the commissioner [comptroller] as soon as practicable for each tax year.
SECTIONi13A.37.iiSection 11.27(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller], with the assistance of the Texas Energy and
Natural Resources Advisory Council, or its successor, shall develop guidelines to
assist local officials in the administration of this section.
SECTIONi13A.38.iiSection 11.43(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller], in prescribing the contents of the
application form for each kind of exemption, shall ensure that the form requires an
applicant to furnish the information necessary to determine the validity of the
exemption claim. The form must require an applicant to provide the applicant's name
3634 78th Legislature — Regular Session 82nd Day
(1)ii"Driver's license" has the meaning assigned that term by Section 521.001, Transportation Code.
(2)ii"Personal identification certificate" means a certificate issued by the Department of Public Safety under Subchapter E, Chapter 521, Transportation Code.
SECTIONi13A.39.iiSection 11.44(c), Tax Code, is amended to read as follows:
(c)iiThe commissioner [comptroller] shall prescribe by rule the content of the
explanation required by Subsection (a) [of this section], and shall require that each
exemption application form be printed and prepared:
(1)iias a separate form from any other form; or
(2)iion the front of the form if the form also provides for other information.
SECTIONi13A.40.iiSection 21.03(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] shall adopt rules:
(1)iiidentifying the kinds of property subject to this section; and
(2)iiestablishing formulas for calculating the proportion of total market value to be allocated to this state.
SECTIONi13A.41.iiSections 21.031(e) and (f), Tax Code, are amended to read as follows:
(e)iiTo receive an allocation of value under this section, a property owner must
apply for the allocation on a form that substantially complies with the form prescribed
by the commissioner [comptroller]. The application must be filed with the chief
appraiser for the district in which the property to which the application applies is
taxable before the approval of the appraisal records by the appraisal review board as
provided by Section 41.12 [of this code].
(f)iiThe commissioner [comptroller] shall promulgate forms and may adopt rules
consistent with the provisions of this section.
SECTIONi13A.42.iiSection 22.21, Tax Code, is amended to read as follows:
Sec.i22.21.iiPUBLICIZING REQUIREMENTS. Each year the commissioner
[comptroller] and each chief appraiser shall publicize in a manner reasonably designed
to notify all property owners the requirements of the law relating to filing rendition
statements and property reports and of the availability of forms.
SECTIONi13A.43.iiSections 22.24(a), (c), and (e), Tax Code, are amended to read as follows:
(a)iiA person required to render property or to file a report as provided by this
chapter shall use a form that substantially complies with the appropriate form
prescribed or approved by the commissioner [comptroller].
(c)iiThe commissioner [comptroller] may prescribe or approve different forms
for different kinds of property but shall ensure that each form requires a property
owner to furnish the information necessary to identify the property and to determine
Friday, May 30, 2003 SENATE JOURNAL 3635
(e)iiTo be valid, a rendition or report must be sworn to before an officer
authorized by law to administer an oath. The commissioner [comptroller] may not
prescribe or approve a rendition or report form unless the form provides for the person
filing the form to swear that the information provided in the rendition or report is true
and accurate to the best of the person's knowledge and belief. This subsection does
not apply to a rendition or report filed by the property owner, an employee of the
property owner, or an employee of a property owner on behalf of an affiliated entity of
the property owner.
SECTIONi13A.44.iiSections 22.27(a), (b), and (d), Tax Code, are amended to read as follows:
(a)iiRendition statements, real and personal property reports, attachments to
those statements and reports, and other information the owner of property provides to
the appraisal office in connection with the appraisal of the property, including income
and expense information related to a property filed with an appraisal office and
information voluntarily disclosed to an appraisal office or the commissioner
[comptroller] about real or personal property sales prices after a promise it will be
held confidential, are confidential and not open to public inspection. The statements
and reports and the information they contain about specific real or personal property
or a specific real or personal property owner and information voluntarily disclosed to
an appraisal office about real or personal property sales prices after a promise it will
be held confidential may not be disclosed to anyone other than an employee of the
appraisal office who appraises property except as authorized by Subsection (b) [of this
section].
(b)iiInformation made confidential by this section may be disclosed:
(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who filed the statement or report or the owner of property subject to the statement, report, or information or to a representative of either authorized in writing to receive the information;
(3)iito the commissioner [comptroller] and the commissioner's
[comptroller's] employees authorized by the commissioner [comptroller] in writing to
receive the information or to an assessor or a chief appraiser if requested in writing;
(4)iiin a judicial or administrative proceeding relating to property taxation to which the person who filed the statement or report or the owner of the property that is a subject of the statement, report, or information is a party;
(5)iifor statistical purposes if in a form that does not identify specific property or a specific property owner;
(6)iiif and to the extent the information is required to be included in a public document or record that the appraisal office is required to prepare or maintain; or
(7)iito a taxing unit or its legal representative that is engaged in the collection of delinquent taxes on the property that is the subject of the information.
3636 78th Legislature — Regular Session 82nd Day
(d)iiNo person who directly or indirectly provides information to the
commissioner [comptroller] or appraisal office about real or personal property sales
prices, either as set forth in Subsection (a) [of this section] under a promise of
confidentiality, or otherwise, shall be liable to any other person as the result of
providing such information.
SECTIONi13A.45.iiSection 23.121(a)(6), Tax Code, is amended to read as follows:
(6)ii"Declaration" means the dealer's motor vehicle inventory declaration
form promulgated by the commissioner [comptroller] as required by this section.
SECTIONi13A.46.iiSection 23.121(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] shall promulgate a form entitled Dealer's
Motor Vehicle Inventory Declaration. Except as provided by Section 23.122(l) [of this
code], not later than February 1 of each year, or, in the case of a dealer who was not in
business on January 1, not later than 30 days after commencement of business, each
dealer shall file a declaration with the chief appraiser and file a copy with the
collector. For purposes of this subsection, a dealer is presumed to have commenced
business on the date of issuance to the dealer of a dealer's general distinguishing
number as provided by Chapter 503, Transportation Code. Notwithstanding the
presumption created by this subsection, a chief appraiser may, at the chief appraiser's
[his or her] sole discretion, designate as the date on which a dealer commenced
business a date other than the date of issuance to the dealer of a dealer's general
distinguishing number. The declaration is sufficient to comply with this subsection if
it sets forth the following information:
(1)iithe name and business address of each location at which the dealer owner conducts business;
(2)iieach of the dealer's general distinguishing numbers issued by the Texas Department of Transportation;
(3)iia statement that the dealer owner is the owner of a dealer's motor vehicle inventory; and
(4)iithe market value of the dealer's motor vehicle inventory for the current
tax year as computed under Section 23.121(b) [of this code].
SECTIONi13A.47.iiSection 23.122(a)(9), Tax Code, is amended to read as follows:
(9)ii"Statement" means the Dealer's Motor Vehicle Inventory Tax Statement
filed on a form promulgated by the commissioner [comptroller] as required by this
section.
SECTIONi13A.48.iiSection 23.122(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall promulgate a form entitled a Dealer's
Motor Vehicle Inventory Tax Statement. A dealer shall complete the form with respect
to each motor vehicle sold. A dealer may use no other form for that purpose. The
statement may include the information the commissioner [comptroller] deems
appropriate but shall include at least the following:
(1)iia description of the motor vehicle sold;
(2)iithe sales price of the motor vehicle;
(3)iithe unit property tax of the motor vehicle if any; and
Friday, May 30, 2003 SENATE JOURNAL 3637
(4)iithe reason no unit property tax is assigned if no unit property tax is assigned.
SECTIONi13A.49.iiSection 23.123(c), Tax Code, is amended to read as follows:
(c)iiInformation made confidential by this section may be disclosed:
(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who filed the declaration or statement or to that person's representative authorized by the person in writing to receive the information;
(3)iito the commissioner [comptroller] or an employee of the commissioner
[comptroller] authorized by the commissioner [comptroller] to receive the
information;
(4)iito a collector or chief appraiser;
(5)iito a district attorney, criminal district attorney or county attorney
involved in the enforcement of a penalty imposed pursuant to Section 23.121 or
Section 23.122 [of this code];
(6)iifor statistical purposes if in a form that does not identify specific property or a specific property owner;
(7)iiif and to the extent that the information is required for inclusion in a public document or record that the appraisal or collection office is required by law to prepare or maintain; or
(8)iito the Texas Department of Transportation for use by that department in auditing compliance of its licensees with appropriate provisions of applicable law.
SECTIONi13A.50.iiSection 23.124(a)(6), Tax Code, is amended to read as follows:
(6)ii"Declaration" means the dealer's vessel and outboard motor inventory
declaration form promulgated by the commissioner [comptroller] as required by this
section.
SECTIONi13A.51.iiSection 23.124(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] shall promulgate a form entitled "Dealer's
Vessel and Outboard Motor Inventory Declaration." Except as provided by Section
23.125(l) [of this code], not later than February 1 of each year or, in the case of a
dealer who was not in business on January 1, not later than 30 days after
commencement of business, each dealer shall file a declaration with the chief
appraiser and file a copy with the collector. The declaration is sufficient to comply
with this subsection if it sets forth the following information:
(1)iithe name and business address of each location at which the dealer owner conducts business;
(2)iieach of the dealer's and manufacturer's numbers issued by the Parks and Wildlife Department;
(3)iia statement that the dealer owner is the owner of a dealer's vessel and outboard motor inventory; and
(4)iithe market value of the dealer's vessel and outboard motor inventory for the current tax year as computed under Subsection (b) of this section.
SECTIONi13A.52.iiSection 23.1241(a)(4), Tax Code, is amended to read as follows:
(4)ii"Declaration" means a dealer's heavy equipment inventory declaration
form adopted by the commissioner [comptroller] under this section.
3638 78th Legislature — Regular Session 82nd Day
SECTIONi13A.53.iiSection 23.1241(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] by rule shall adopt a dealer's heavy
equipment inventory declaration form. Except as provided by Section 23.1242(k), not
later than February 1 of each year, or, in the case of a dealer who was not in business
on January 1, not later than 30 days after commencement of business, each dealer
shall file a declaration with the chief appraiser and file a copy with the collector. The
declaration is sufficient to comply with this subsection if it sets forth:
(1)iithe name and business address of each location at which the declarant conducts business;
(2)iia statement that the declarant is the owner of a dealer's heavy equipment inventory; and
(3)iithe market value of the declarant's heavy equipment inventory for the current tax year as computed under Subsection (b).
SECTIONi13A.54.iiSection 23.1242(a)(3), Tax Code, is amended to read as follows:
(3)ii"Statement" means the dealer's heavy equipment inventory tax
statement filed on a form adopted by the commissioner [comptroller] under this
section.
SECTIONi13A.55.iiSection 23.1242(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] by rule shall adopt a dealer's heavy
equipment inventory tax statement form. A dealer shall complete the form with
respect to each item of heavy equipment sold. A dealer may use no other form for that
purpose. The statement may include the information the commissioner [comptroller]
considers appropriate but shall include at least the following:
(1)iia description of the item of heavy equipment sold, including any unique identification or serial number affixed to the item by the manufacturer;
(2)iithe sales price of the item of heavy equipment;
(3)iithe unit property tax of the item of heavy equipment, if any; and
(4)iithe reason no unit property tax is assigned if no unit property tax is assigned.
SECTIONi13A.56.iiSection 23.125(a)(9), Tax Code, is amended to read as follows:
(9)ii"Statement" means the dealer's vessel and outboard motor inventory tax
statement filed on a form promulgated by the commissioner [comptroller] as required
by this section.
SECTIONi13A.57.iiSection 23.125(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall promulgate a form entitled "Dealer's
Vessel and Outboard Motor Inventory Tax Statement." A dealer shall complete the
form with respect to each vessel and outboard motor sold. A dealer may use no other
form for that purpose. The statement may include the information the commissioner
[comptroller] deems appropriate but shall include at least the following:
(1)iia description of the vessel or outboard motor sold;
(2)iithe sales price of the vessel or outboard motor;
(3)iithe unit property tax of the vessel or outboard motor, if any; and
Friday, May 30, 2003 SENATE JOURNAL 3639
(4)iithe reason no unit property tax is assigned if no unit property tax is assigned.
SECTIONi13A.58.iiSection 23.126(c), Tax Code, is amended to read as follows:
(c)iiInformation made confidential by this section may be disclosed:
(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who filed the declaration or statement or to that person's representative authorized by the person in writing to receive the information;
(3)iito the commissioner [comptroller] or an employee of the commissioner
[comptroller] authorized by the commissioner [comptroller] to receive the
information;
(4)iito a collector or chief appraiser;
(5)iito a district attorney, criminal district attorney, or county attorney
involved in the enforcement of a penalty imposed pursuant to Section 23.124 or
Section 23.125 [of this code];
(6)iifor statistical purposes if in a form that does not identify specific property or a specific property owner; or
(7)iiif and to the extent that the information is required for inclusion in a document or record that the appraisal or collection office is required by law to prepare or maintain.
SECTIONi13A.59.iiSection 23.127(a)(3), Tax Code, is amended to read as follows:
(3)ii"Declaration" means a retail manufactured housing inventory
declaration form adopted by the commissioner [comptroller] under this section.
SECTIONi13A.60.iiSection 23.127(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] by rule shall adopt a form entitled "Retail
Manufactured Housing Inventory Declaration." Except as provided by Section
23.128(k), not later than February 1 of each year or, in the case of a retailer who was
not in business on January 1, not later than the 30th day after the date the retailer
commences business, each retailer shall file a declaration with the chief appraiser and
file a copy with the collector. The declaration is sufficient to comply with this
subsection if it sets forth the following information:
(1)iithe name and business address of each location at which the retailer conducts business;
(2)iithe retailer's license number issued by the department;
(3)iia statement that the retailer is the owner of a retail manufactured housing inventory; and
(4)iithe market value of the retailer's manufactured housing inventory for the current tax year as computed under Subsection (b).
SECTIONi13A.61.iiSection 23.128(a)(4), Tax Code, is amended to read as follows:
(4)ii"Statement" means the retail manufactured housing inventory tax
statement filed on a form adopted by the commissioner [comptroller] under this
section.
3640 78th Legislature — Regular Session 82nd Day
SECTIONi13A.62.iiSection 23.128(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] by rule shall adopt a form entitled "Retail
Manufactured Housing Inventory Tax Statement." A retailer shall complete the form
with respect to each unit of manufactured housing sold. A retailer may not use another
form for that purpose. The statement shall include:
(1)iia description of the unit of manufactured housing sold, including any unique identification or serial number affixed to the unit by the manufacturer;
(2)iithe sales price of the unit of manufactured housing;
(3)iiany unit property tax of the unit of manufactured housing;
(4)iithe reason a unit property tax is not assigned if that is the case; and
(5)iiany other information the commissioner [comptroller] considers
appropriate.
SECTIONi13A.63.iiSection 23.175(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] by rule shall develop and distribute to each
appraisal office appraisal manuals that specify methods and procedures to discount
future income from the sale of oil or gas from the interest to present value.
SECTIONi13A.64.iiSections 23.41(b) and (e), Tax Code, are amended to read as follows:
(b)iiThe commissioner [comptroller] shall promulgate rules specifying the
methods to apply and the procedures to use in appraising land designated for
agricultural use.
(e)iiImprovements other than appurtenances to the land, the mineral estate, and
all land used for residential purposes and for processing harvested agricultural
products are appraised separately at market value. Riparian water rights, private roads,
dams, reservoirs, water wells, and canals, ditches, terraces, and similar reshaping of or
additions to the soil for agricultural purposes are appurtenances to the land, and the
effect of each on the value of the land for agricultural use shall be considered in
appraising the land. However, the commissioner [comptroller] shall provide that in
calculating average net income from land a deduction from income be allowed for an
appurtenance subject to depreciation or depletion.
SECTIONi13A.65.iiSection 23.43(d), Tax Code, is amended to read as follows:
(d)iiThe commissioner [comptroller] in prescribing the contents of the
application forms shall ensure that each form requires a claimant to furnish the
information necessary to determine the validity of the claim. The commissioner
[comptroller] shall require that the form permit a claimant who has previously been
allowed an agricultural designation to indicate that previously reported information
has not changed and to supply only the eligibility information not previously reported.
SECTIONi13A.66.iiSection 23.45(b), Tax Code, is amended to read as follows:
(b)iiInformation made confidential by this section may be disclosed:
(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who filed the application or to his representative authorized in writing to receive the information;
(3)iito the commissioner [comptroller] and his employees authorized by him
in writing to receive the information or to an assessor or a chief appraiser if requested
in writing;
(4)iiin a judicial or administrative proceeding relating to property taxation to which the person who filed the application is a party;
Friday, May 30, 2003 SENATE JOURNAL 3641
(5)iifor statistical purposes if in a form that does not identify specific property or a specific property owner; or
(6)iiif and to the extent the information is required to be included in a public document or record that the appraisal office is required to prepare or maintain.
SECTIONi13A.67.iiSection 23.52(d), Tax Code, is amended to read as follows:
(d)iiThe commissioner [comptroller] by rule shall develop and distribute to each
appraisal office appraisal manuals setting forth this method of appraising qualified
open-space land, and each appraisal office shall use the appraisal manuals in
appraising qualified open-space land. The commissioner [comptroller] by rule shall
develop and the appraisal office shall enforce procedures to verify that land meets the
conditions contained in Subdivision (1) of Section 23.51 [of this code]. The rules,
before taking effect, must be approved by a majority vote of a committee comprised
of the following officials or their designees: the commissioner, the governor, the
comptroller, the attorney general, and the agriculture commissioner[, and the
Commissioner of the General Land Office].
SECTIONi13A.68.iiSection 23.521(a), Tax Code, is amended to read as follows:
(a)iiThe Parks and Wildlife Department, with the assistance of the commissioner
[comptroller], shall develop standards for determining whether land qualifies under
Section 23.51(7) for appraisal under this subchapter. The commissioner [comptroller]
by rule shall adopt the standards developed by the Parks and Wildlife Department and
distribute those rules to each appraisal district. On request of the Parks and Wildlife
Department, the Texas Agricultural Extension Service shall assist the department in
developing the standards.
SECTIONi13A.69.iiSections 23.54(b) and (c), Tax Code, are amended to read as follows:
(b)iiTo be valid, the application must:
(1)iibe on a form provided by the appraisal office and prescribed by the
commissioner [comptroller]; and
(2)iicontain the information necessary to determine the validity of the claim.
(c)iiThe commissioner [comptroller] shall include on the form a notice of the
penalties prescribed by Section 37.10, Penal Code, for making or filing an application
containing a false statement. The commissioner [comptroller], in prescribing the
contents of the application form, shall require that the form permit a claimant who has
previously been allowed appraisal under this subchapter to indicate that previously
reported information has not changed and to supply only the eligibility information
not previously reported.
SECTIONi13A.70.iiSection 23.73(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] by rule shall develop and distribute to each
appraisal office appraisal manuals setting forth this method of appraising qualified
timber land, and each appraisal office shall use the appraisal manuals in appraising
qualified timber land. The commissioner [comptroller] by rule shall develop and the
appraisal office shall enforce procedures to verify that land meets the conditions
contained in Section 23.72 [of this code]. The rules, before taking effect, must be
approved by majority vote of a committee comprised of the following officials or their
designees: the commissioner, the governor, the comptroller, the attorney general, and
the agriculture commissioner[, and the Commissioner of the General Land Office].
3642 78th Legislature — Regular Session 82nd Day
SECTIONi13A.71.iiSections 23.75(b) and (c), Tax Code, are amended to read as follows:
(b)iiTo be valid, the application must:
(1)iibe on a form provided by the appraisal office and prescribed by the
commissioner [comptroller]; and
(2)iicontain the information necessary to determine the validity of the claim.
(c)iiThe commissioner [comptroller] shall include on the form a notice of the
penalties prescribed by Section 37.10, Penal Code, for making or filing an application
containing a false statement. The commissioner [comptroller], in prescribing the
contents of the application form, shall require that the form permit a claimant who has
previously been allowed appraisal under this subchapter to indicate that previously
reported information has not changed and to supply only the eligibility information
not previously reported.
SECTIONi13A.72.iiSection 23.83(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall promulgate rules specifying the
methods to apply and the procedures to use in appraising land under this subchapter.
SECTIONi13A.73.iiSection 23.84(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] in prescribing the contents of the application
forms shall ensure that each form requires a claimant to furnish the information
necessary to determine the validity of the claim and that the form requires the claimant
to state that the land for which the claimant [he] claims appraisal under this subchapter
will be used exclusively for recreational, park, or scenic uses in the current year.
SECTIONi13A.74.iiSection 23.93(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall promulgate rules specifying the
methods to apply and the procedures to use in appraising property under this
subchapter.
SECTIONi13A.75.iiSection 23.94(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] in prescribing the contents of the application
forms shall ensure that each form requires a claimant to furnish the information
necessary to determine the validity of the claim and that the form requires the claimant
to state that the airport property for which the claimant [he] claims appraisal under this
subchapter will be used exclusively as public access airport property in the current
year.
SECTIONi13A.76.iiSections 23.9804(b), (c), and (d), Tax Code, are amended to read as follows:
(b)iiTo be valid, an application for appraisal under Section 23.9802(a) must:
(1)iibe on a form provided by the appraisal office and prescribed by the
commissioner [comptroller];
(2)iiprovide evidence that the land qualifies for designation as an aesthetic management zone, critical wildlife habitat zone, or streamside management zone;
(3)iispecify the location of the proposed zone and the quantity of land, in acres, in the proposed zone; and
(4)iicontain other information necessary to determine the validity of the claim.
(c)iiTo be valid, an application for appraisal under Section 23.9802(b) must:
Friday, May 30, 2003 SENATE JOURNAL 3643
(1)iibe on a form provided by the appraisal office and prescribed by the
commissioner [comptroller];
(2)iiprovide evidence that the land on which the timber was harvested was appraised under Subchapter E in the year in which the timber was harvested;
(3)iiprovide evidence that all of the land has been regenerated in compliance with Section 23.9802(b)(2); and
(4)iicontain other information necessary to determine the validity of the claim.
(d)iiThe commissioner [comptroller] shall include on the form a notice of the
penalties prescribed by Section 37.10, Penal Code, for making or filing an application
containing a false statement. The commissioner [comptroller], in prescribing the
contents of the application form, shall require that the form permit a claimant who has
previously been allowed appraisal under this subchapter to indicate that the previously
reported information has not changed and to supply only the eligibility information
not previously reported.
SECTIONi13A.77.iiSection 24.32(c), Tax Code, is amended to read as follows:
(c)iiA report required by this section must be on a form prescribed by the
commissioner [comptroller]. In prescribing the form, the commissioner [comptroller]
shall ensure that it requires the information necessary to determine market value of
rolling stock used in this state.
SECTIONi13A.78.iiSection 24.34(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] shall adopt rules establishing formulas for
interstate allocation of the value of railroad rolling stock.
SECTIONi13A.79.iiSections 24.36, 24.365, 24.37, and 24.38, Tax Code, are amended to read as follows:
Sec.i24.36.iiCERTIFICATION TO COMMISSIONER [COMPTROLLER]. On
approval of the appraised value of the rolling stock as provided by Chapter 41 [of this
code], the chief appraiser shall certify to the commissioner [comptroller] the amount
of market value allocated to this state for each owner whose rolling stock is appraised
in the county and the name and business address of each owner.
Sec.i24.365.iiCORRECTION OF CERTIFIED AMOUNT. (a) A chief appraiser
who discovers that the chief appraiser's certification to the commissioner
[comptroller] of the amount of the market value of rolling stock allocated to this state
under Section 24.36 was incomplete or incorrect shall immediately certify the correct
amount of that market value to the commissioner [comptroller].
(b)iiAs soon as practicable after the commissioner [comptroller] receives the
correct certification from the chief appraiser, the commissioner [comptroller] shall
certify to the county assessor-collector for each affected county the information
required by Section 24.38 as corrected.
Sec.i24.37.iiINTRASTATE APPORTIONMENT. The commissioner
[comptroller] shall apportion the appraised value of each owner's rolling stock to each
county in which the railroad using it operates according to the ratio the mileage of
road owned by the railroad in the county bears to the total mileage of road the railroad
owns in this state.
3644 78th Legislature — Regular Session 82nd Day
Sec.i24.38.iiCERTIFICATION OF APPORTIONED VALUE. Before August 1,
the commissioner [comptroller] shall certify to the county assessor-collector for each
county in which a railroad operates:
(1)iithe county's apportioned amount of the market value of each owner's rolling stock; and
(2)iithe name and business address of each owner.
SECTIONi13A.80.iiSection 24.40(a), Tax Code, is amended to read as follows:
(a)iiIf a chief appraiser discovers that rolling stock used in this state and subject
to appraisal by the chief appraiser [him] has not been appraised and apportioned to the
counties in one of the two preceding years, he shall appraise the property as of
January 1 for each year it was omitted, submit the appraisal for review and protest,
and certify the approved value to the commissioner [comptroller].
SECTIONi13A.81.iiSection 25.011(b), Tax Code, is amended to read as follows:
(b)iiThe record for each type of specially appraised property must be maintained
in a separate document for each 12-month period beginning June 1. The document
must include the name of at least one owner of the property, the acreage of the
property, and other information sufficient to identify the property as required by the
commissioner [comptroller]. All entries in each document must be kept in alphabetical
order according to the last name of each owner whose name is part of the record.
SECTIONi13A.82.iiSection 25.02(a), Tax Code, is amended to read as follows:
(a)iiThe appraisal records shall be in the form prescribed by the commissioner
[comptroller] and shall include:
(1)iithe name and address of the owner or, if the name or address is unknown, a statement that it is unknown;
(2)iireal property;
(3)iiseparately taxable estates or interests in real property, including taxable possessory interests in exempt real property;
(4)iipersonal property;
(5)iithe appraised value of land and, if the land is appraised as provided by Subchapter C, D, E, or H, Chapter 23, the market value of the land;
(6)iithe appraised value of improvements to land;
(7)iithe appraised value of a separately taxable estate or interest in land;
(8)iithe appraised value of personal property;
(9)iithe kind of any partial exemption the owner is entitled to receive, whether the exemption applies to appraised or assessed value, and, in the case of an exemption authorized by Section 11.23, the amount of the exemption;
(10)iithe tax year to which the appraisal applies; and
(11)iian identification of each taxing unit in which the property is taxable.
SECTIONi13A.83.iiSection 25.025(b), Tax Code, is amended to read as follows:
(b)iiInformation in appraisal records under Section 25.02 is confidential and is
available only for the official use of the appraisal district, this state, the commissioner
[comptroller], and taxing units and political subdivisions of this state if:
(1)iithe information identifies the home address of a named individual to whom this section applies; and
Friday, May 30, 2003 SENATE JOURNAL 3645
(2)iithe individual chooses to restrict public access to the information on the
form prescribed for that purpose by the commissioner [comptroller] under Section
5.07.
SECTIONi13A.84.iiSection 25.026(b), Tax Code, is amended to read as follows:
(b)iiInformation in appraisal records under Section 25.02 is confidential and is
available only for the official use of the appraisal district, this state, the commissioner
[comptroller], and taxing units and political subdivisions of this state if the
information identifies the address of a family violence shelter center or a sexual
assault program.
SECTIONi13A.85.iiSection 25.03(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] may adopt rules establishing minimum
standards for descriptions of property.
SECTIONi13A.86.iiSections 25.19(i) and (j), Tax Code, are amended to read as follows:
(i)iiDelivery with a notice required by Subsection (a) or (g) of a copy of the
pamphlet published by the commissioner [comptroller] under Section 5.06 or a copy
of the notice published by the chief appraiser under Section 41.70 is sufficient to
comply with the requirement that the notice include the information specified by
Subsection (b)(7) or (g)(3), as applicable.
(j)iiThe chief appraiser shall include with a notice required by Subsection (a) or (g):
(1)iia copy of a notice of protest form as prescribed by the commissioner
[comptroller] under Section 41.44(d); and
(2)iiinstructions for completing and mailing the form to the appraisal review board and requesting a hearing on the protest.
SECTIONi13A.87.iiSection 25.23(b), Tax Code, is amended to read as follows:
(b)iiSupplemental appraisal records shall be in the form prescribed by the
commissioner [comptroller] and shall include the items required by Section 25.02 [of
this code].
SECTIONi13A.88.iiSection 26.01(b), Tax Code, is amended to read as follows:
(b)iiWhen a chief appraiser submits an appraisal roll for county taxes to a county
assessor-collector, the chief appraiser also shall certify the appraisal district appraisal
roll to the commissioner [comptroller]. However, the commissioner [comptroller] by
rule may provide for submission of only a summary of the appraisal roll. The chief
appraiser shall certify the district appraisal roll or the summary of that roll in the form
and manner prescribed by the commissioner's [comptroller's] rule.
SECTIONi13A.89.iiSection 26.04(e), Tax Code, is amended to read as follows:
(e)iiBy August 7 or as soon thereafter as practicable, the designated officer or
employee shall submit the rates to the governing body. The designated officer or
employee [He] shall deliver by mail to each property owner in the unit or publish in a
newspaper in the form prescribed by the commissioner [comptroller]:
(1)iithe effective tax rate, the rollback tax rate, and an explanation of how they were calculated;
3646 78th Legislature — Regular Session 82nd Day
(2)iithe estimated amount of interest and sinking fund balances and the estimated amount of maintenance and operation or general fund balances remaining at the end of the current fiscal year that are not encumbered with or by corresponding existing debt obligation;
(3)iia schedule of the unit's debt obligations showing:
(A)iithe amount of principal and interest that will be paid to service the unit's debts in the next year from property tax revenue, including payments of lawfully incurred contractual obligations providing security for the payment of the principal of and interest on bonds and other evidences of indebtedness issued on behalf of the unit by another political subdivision and, if the unit is created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, payments on debts that the unit anticipates to incur in the next calendar year;
(B)iithe amount by which taxes imposed for debt are to be increased because of the unit's anticipated collection rate; and
(C)iithe total of the amounts listed in Paragraphs (A)-(B), less any amount collected in excess of the previous year's anticipated collections certified as provided in Subsection (b);
(4)iithe amount of additional sales and use tax revenue anticipated in calculations under Section 26.041;
(5)iia statement that the adoption of a tax rate equal to the effective tax rate would result in an increase or decrease, as applicable, in the amount of taxes imposed by the unit as compared to last year's levy, and the amount of the increase or decrease;
(6)iiin the year that a taxing unit calculates an adjustment under Subsection (i) or (j), a schedule that includes the following elements:
(A)iithe name of the unit discontinuing the department, function, or activity;
(B)iithe amount of property tax revenue spent by the unit listed under Paragraph (A) to operate the discontinued department, function, or activity in the 12 months preceding the month in which the calculations required by this chapter are made; and
(C)iithe name of the unit that operates a distinct department, function, or activity in all or a majority of the territory of a taxing unit that has discontinued operating the distinct department, function, or activity; and
(7)iiin the year following the year in which a taxing unit raised its rollback rate as required by Subsection (j), a schedule that includes the following elements:
(A)iithe amount of property tax revenue spent by the unit to operate the department, function, or activity for which the taxing unit raised the rollback rate as required by Subsection (j) for the 12 months preceding the month in which the calculations required by this chapter are made; and
(B)iithe amount published by the unit in the preceding tax year under Subdivision (6)(B).
SECTIONi13A.90.iiSection 26.06(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] by rule shall prescribe the language and
format to be used in the part of the notice required by Subsection (b)(2). A notice
under Subsection (b) is not valid if it does not substantially conform to the language
and format prescribed by the commissioner [comptroller] under this subsection.
Friday, May 30, 2003 SENATE JOURNAL 3647
SECTIONi13A.91.iiSection 31.01(c), Tax Code, is amended to read as follows:
(c)iiThe tax bill or a separate statement accompanying the tax bill shall:
(1)iiidentify the property subject to the tax;
(2)iistate the appraised value, assessed value, and taxable value of the property;
(3)iiif the property is land appraised as provided by Subchapter C, D, E, or H, Chapter 23, state the market value and the taxable value for purposes of deferred or additional taxation as provided by Section 23.46, 23.55, 23.76, or 23.9807, as applicable;
(4)iistate the assessment ratio for the unit;
(5)iistate the type and amount of any partial exemption applicable to the property, indicating whether it applies to appraised or assessed value;
(6)iistate the total tax rate for the unit;
(7)iistate the amount of tax due, the due date, and the delinquency date;
(8)iiexplain the payment option and discounts provided by Sections 31.03 and 31.05, if available to the unit's taxpayers, and state the date on which each of the discount periods provided by Section 31.05 concludes, if the discounts are available;
(9)iistate the rates of penalty and interest imposed for delinquent payment of the tax;
(10)iiinclude the name and telephone number of the assessor for the unit and, if different, of the collector for the unit; and
(11)iiinclude any other information required by the commissioner
[comptroller].
SECTIONi13A.92.iiSection 31.032(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] shall adopt rules to implement this section.
SECTIONi13A.93.iiSection 31.075(a), Tax Code, is amended to read as follows:
(a)iiAt the request of a property owner or a property owner's agent, the collector
for a taxing unit shall issue a receipt showing the taxable value and the amount of tax
imposed by the unit on the property in one or more tax years for which the
information is requested, the tax rate for each of those tax years, and the amount of tax
paid in each of those years. The receipt must describe the property in the manner
prescribed by the commissioner [comptroller].
SECTIONi13A.94.iiSection 31.11(c), Tax Code, is amended to read as follows:
(c)iiAn application for a refund must be made within three years after the date of the payment or the taxpayer waives the right to the refund. A taxpayer may apply for a refund by filing:
(1)iian application on a form prescribed by the commissioner [comptroller]
by rule; or
(2)iia written request that includes information sufficient to enable the auditor for the taxing unit and, if applicable, the governing body of the taxing unit to determine whether the taxpayer is entitled to the refund.
SECTIONi13A.95.iiSection 33.43(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall prepare forms for petitions initiating
suits to collect delinquent taxes. An attorney representing a taxing unit may use the
forms or develop a [his own] form.
3648 78th Legislature — Regular Session 82nd Day
SECTIONi13A.96.iiSection 41.44(d), Tax Code, is amended to read as follows:
(d)iiA notice of protest is sufficient if it identifies the protesting property owner,
including a person claiming an ownership interest in the property even if that person is
not listed on the appraisal records as an owner of the property, identifies the property
that is the subject of the protest, and indicates apparent dissatisfaction with some
determination of the appraisal office. The notice need not be on an official form, but
the commissioner [comptroller] shall prescribe a form that provides for more detail
about the nature of the protest. The form must permit a property owner to include each
property in the appraisal district that is the subject of a protest. The commissioner
[comptroller], each appraisal office, and each appraisal review board shall make the
forms readily available and deliver one to a property owner on request.
SECTIONi13A.97.iiSections 41.45(k) and (l), Tax Code, are amended to read as follows:
(k)iiThe commissioner [comptroller] shall prescribe a standard form for an
affidavit offered under Subsection (b). Each appraisal district shall make copies of the
affidavit form available to property owners without charge.
(l)iiA property owner is not required to use the affidavit form prescribed by the
commissioner [comptroller] when offering an affidavit under Subsection (b).
SECTIONi13A.98.iiSection 41.461(a), Tax Code, is amended to read as follows:
(a)iiAt least 14 days before a hearing on a protest, the chief appraiser shall:
(1)iideliver a copy of the pamphlet prepared by the commissioner
[comptroller] under Section 5.06(a) to the property owner initiating the protest if the
owner is not represented by another person [representing himself], or to an agent
representing the owner if requested by the agent;
(2)iiinform the property owner that the owner or the agent of the owner may inspect and may obtain a copy of the data, schedules, formulas, and all other information the chief appraiser plans to introduce at the hearing to establish any matter at issue; and
(3)iideliver a copy of the hearing procedures established by the appraisal review board under Section 41.66 to the property owner.
SECTIONi13A.99.iiSections 41.65 and 41.68, Tax Code, are amended to read as follows:
Sec.i41.65.iiREQUEST FOR STATE ASSISTANCE. The appraisal review board
may request the commissioner [comptroller] to assist in determining the accuracy of
appraisals by the appraisal office or to provide other professional assistance. The
appraisal office shall reimburse the costs of providing assistance if the commissioner
[comptroller] requests reimbursement.
Sec.i41.68.iiRECORD OF PROCEEDING. The appraisal review board shall
keep a record of its proceedings in the form and manner prescribed by the
commissioner [comptroller].
SECTIONi13A.100.iiSection 41.70(a), Tax Code, is amended to read as follows:
(a)iiOn or after May 1 but not later than May 15, the chief appraiser shall publish notice of the manner in which a protest under this chapter may be brought by a property owner. The notice must describe how to initiate a protest and must describe the deadlines for filing a protest. The notice must also describe the manner in which
Friday, May 30, 2003 SENATE JOURNAL 3649
an order of the appraisal review board may be appealed. The commissioner
[comptroller] by rule shall adopt minimum standards for the form and content of the
notice required by this section.
SECTIONi13A.101.iiSections 42.01, 42.03, and 42.05, Tax Code, are amended to read as follows:
Sec.i42.01.iiRIGHT OF APPEAL BY PROPERTY OWNER. A property owner is entitled to appeal:
(1)iian order of the appraisal review board determining:
(A)iia protest by the property owner as provided by Subchapter C of Chapter 41; or
(B)iia determination of an appraisal review board on a motion filed under Section 25.25; or
(2)iian order of the commissioner [comptroller] issued as provided by
Subchapter B, Chapter 24, apportioning among the counties the appraised value of
railroad rolling stock owned by the property owner.
Sec.i42.03.iiRIGHT OF APPEAL BY COUNTY. A county may appeal the order
of the commissioner [comptroller] issued as provided by Subchapter B, Chapter 24 of
this code apportioning among the counties the appraised value of railroad rolling
stock.
Sec.i42.05.iiCOMMISSIONER [COMPTROLLER] AS PARTY. The
commissioner [comptroller] is an opposing party in an appeal by:
(1)iia property owner of an order of the commissioner [comptroller]
determining a protest of the appraisal, interstate allocation, or intrastate apportionment
of transportation business intangibles; or
(2)iia county or a property owner of an order of the commissioner
[comptroller] apportioning among the counties the appraised value of railroad rolling
stock.
SECTIONi13A.102.iiSections 42.06(a), (b), and (c), Tax Code, are amended to read as follows:
(a)iiTo exercise the party's right to appeal an order of an appraisal review board,
a party other than a property owner must file written notice of appeal within 15 days
after the date the party receives the notice required by Section 41.47 or, in the case of
a taxing unit, by Section 41.07 that the order appealed has been issued. To exercise
the right to appeal an order of the commissioner [comptroller], a party other than a
property owner must file written notice of appeal within 15 days after the date the
party receives the commissioner's [comptroller's] order. A property owner is not
required to file a notice of appeal under this section.
(b)iiA party required to file a notice of appeal under this section other than a
chief appraiser who appeals an order of an appraisal review board shall file the notice
with the chief appraiser of the appraisal district for which the appraisal review board is
established. A chief appraiser who appeals an order of an appraisal review board shall
file the notice with the appraisal review board. A party who appeals an order of the
commissioner [comptroller] shall file the notice with the commissioner [comptroller].
3650 78th Legislature — Regular Session 82nd Day
(c)iiIf the chief appraiser, a taxing unit, or a county appeals, the chief appraiser, if
the appeal is of an order of the appraisal review board, or the commissioner
[comptroller], if the appeal is of an order of the commissioner [comptroller], shall
deliver a copy of the notice to the property owner whose property is involved in the
appeal within 10 days after the date the notice is filed.
SECTIONi13A.103.iiSection 42.21(b), Tax Code, is amended to read as follows:
(b)iiA petition for review brought under Section 42.02 must be brought against
the owner of the property involved in the appeal. A petition for review brought under
Section 42.031 must be brought against the appraisal district and against the owner of
the property involved in the appeal. A petition for review brought under Subdivision
(2) or (3) of Section 42.01 or under Section 42.03 must be brought against the
commissioner [comptroller]. Any other petition for review under this chapter must be
brought against the appraisal district. A petition for review is not required to be
brought against the appraisal review board, but may be brought against the appraisal
review board in addition to any other required party, if appropriate.
SECTIONi13A.104.iiSection 42.22, Tax Code, as amended by Chapters 667 and 1033, Acts of the 73rd Legislature, Regular Session, 1993, is reenacted and amended to read as follows:
Sec.i42.22.iiVENUE.ii(a)iiExcept as provided by Subsections (b) and (c), and by Section 42.221, venue is in the county in which the appraisal review board that issued the order appealed is located.
(b)iiVenue of an action brought under Section 42.01(1) is in the county in which the property is located or in the county in which the appraisal review board that issued the order is located.
(c)iiVenue is in Travis County if the order appealed was issued by the
commissioner [comptroller].
SECTIONi13A.105.iiSection 42.23(b), Tax Code, is amended to read as follows:
(b)iiThe court may not admit in evidence the fact of prior action by the appraisal
review board or commissioner [comptroller], except to the extent necessary to
establish its jurisdiction.
SECTIONi13A.106.iiSection 42.26(c), Tax Code, is amended to read as follows:
(c)iiFor purposes of establishing the median level of appraisal under Subsection
(a)(1), the median level of appraisal in the appraisal district as determined by the
commissioner [comptroller] under Section 51.41 [5.10] is admissible as evidence of
the median level of appraisal of a reasonable and representative sample of properties
in the appraisal district for the year of the commissioner's [comptroller's]
determination, subject to the Texas Rules of Evidence and the Texas Rules of Civil
Procedure.
SECTIONi13A.107.iiSections 42.28 and 43.01, Tax Code, are amended to read as follows:
Sec.i42.28.iiAPPEAL OF DISTRICT COURT JUDGMENT. A party may
appeal the final judgment of the district court as provided by law for appeal of civil
suits generally, except that an appeal bond is not required of the chief appraiser, the
county, the commissioner [comptroller], or the commissioners court of a county.
Friday, May 30, 2003 SENATE JOURNAL 3651
Sec.i43.01.iiAUTHORITY TO BRING SUIT. A taxing unit may sue the
appraisal district that appraises property for the unit to compel the appraisal district to
comply with the provisions of this title, rules of the commissioner [comptroller], or
other applicable law.
SECTIONi13A.108.iiSection 313.022(b), Tax Code, is amended to read as follows:
(b)iiFor purposes of determining the required minimum amount of a qualified
investment under Section 313.021(2)(A)(iv)(a), and the minimum amount of a
limitation on appraised value under Section 313.027(b), school districts to which this
subchapter applies are categorized according to the taxable value of property in the
district for the preceding tax year determined under Subchapter B, Chapter 51, Tax
[Subchapter M, Chapter 403, Government] Code, as follows:
| CATEGORY | TAXABLE VALUE OF PROPERTY |
| iiiiiiiiiiI | $10 billion or more |
| iiiiiiiiiII | $1 billion or more but less than $10 billion |
| iiiiiiiiIII | $500 million or more but less than $1 billion |
| iiiiiiiiIV | $100 million or more but less than $500 million |
| iiiiiiiiiV | less than $100 million |
SECTIONi13A.109.iiSection 313.052, Tax Code, is amended to read as follows:
Sec.i313.052.iiCATEGORIZATION OF SCHOOL DISTRICTS. For purposes of
determining the required minimum amount of a qualified investment under Section
313.021(2)(A)(iv)(a) and the minimum amount of a limitation on appraised value
under this subchapter, school districts to which this subchapter applies are categorized
according to the taxable value of industrial property in the district for the preceding
tax year determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code, as follows:
| CATEGORY | TAXABLE VALUE OF INDUSTRIAL PROPERTY |
| iiiiiiiiiiI | $200 million or more |
| iiiiiiiiiII | $90 million or more but less than $200 million |
| iiiiiiiiIII | $1 million or more but less than $90 million |
| iiiiiiiiIV | $100,000 or more but less than $1 million |
| iiiiiiiiiV | less than $100,000 |
SECTIONi13A.110.iiSections 39.901(a), (b), (c), and (e), Utilities Code, are amended to read as follows:
(a)iiNot later than August 31 each year, the commissioner of the State Board on
Property Valuation [comptroller] shall certify to the Texas Education Agency the
statewide net loss in electric generating facility property value attributable to electric
utility restructuring. In calculating the statewide net loss in electric generating facility
property value, the commissioner of the State Board on Property Valuation
[comptroller] shall:
3652 78th Legislature — Regular Session 82nd Day
(1)iisubtract current year electric generating facility appraisal roll values, as defined by Section 25.24, Tax Code, from 1999 electric generating facility appraised values in each school district;
(2)iisum the resulting property value losses (positive differences);
(3)iisum the resulting property value gains (negative differences); and
(4)iisubtract the absolute value of the property value gains, subject to the limitation in Section 39.9011, from the absolute value of the property value losses to calculate a statewide net loss.
(b)iiThe Texas Education Agency shall determine the amount necessary to
compensate the state for the statewide net loss certified under Subsection (a) by
multiplying the statewide net loss by the average adopted property tax rate of the
school districts that had losses, weighted by the value losses in each school district,
and dividing the result by 100 and shall notify the commission of the amount
necessary to compensate the state for the reduction. The commissioner of the State
Board on Property Valuation [comptroller] shall provide the Texas Education Agency
the electric generating facility value losses in each school district used in Subsection
(a)(2) for use in calculating the weighted average property tax rate.
(c)iiThe amounts determined by the commissioner of the State Board on Property
Valuation [comptroller] and the Texas Education Agency under this section, for the
purposes of this section, are final and may not be appealed.
(e)iiThe commissioner of education and the commissioner of the State Board on
Property Valuation [comptroller] shall adopt rules necessary to implement this section,
including rules providing for public input.
SECTIONi13A.111.iiThe following laws are repealed:
(1)iiSections 5.10, 5.102, 5.12, and 5.13, Tax Code; and
(2)iiSubchapter M, Chapter 403, Government Code.
SECTIONi13A.112.ii(a) As soon as practicable on or after the effective date of this article, the governor shall appoint the members of the State Board on Property Valuation. The initial members appointed shall draw lots so that one member's term expires March 1, 2005, two members' terms expire March 1, 2007, and two members' terms expire March 1, 2009. The board shall employ a commissioner as soon as practicable after a majority of the members of the board qualify for office.
(b)iiThe comptroller of public accounts and the commissioner of the State Board on Property Valuation shall coordinate the transfer of all aspects and functions of the comptroller relating to state administration of the property tax system to the board or commissioner, as applicable. The transfer shall be accomplished as soon as practicable but not later than the 45th day after the date the board employs the initial commissioner.
Friday, May 30, 2003 SENATE JOURNAL 3653
(c)iiThe transfer required by Subsection (b) of this section includes all assets, obligations, and liabilities of any kind relating to state administration of the property tax system, including all contracts, leases, real or personal property, personnel, furniture, computers and other equipment, files, and related materials used by the comptroller for that purpose.
(d)iiAll appropriations made to the comptroller for the operation of the property tax division, as well as the personnel assigned to the division, are transferred to the State Board on Property Valuation, except for the appropriations for support services provided by other divisions of the comptroller's office. Notwithstanding Section 5.02(d), Tax Code, as added by this Act, until the end of the state fiscal biennium that begins September 1, 2003, the comptroller, by interagency contract, shall continue to provide support to the State Board on Property Valuation for payroll, human resources, computer maintenance and technical assistance, printing and distribution of publications created by the board, and similar administrative services currently provided.
(e)iiAll forms, rules, and procedures relating to state administration of the property tax system adopted by the comptroller or administratively transferred to the comptroller and in effect on the effective date of this article remain in effect on or after that date as if adopted by the State Board on Property Valuation or the commissioner of the State Board on Property Valuation, as applicable, until amended, repealed, withdrawn, or otherwise superseded by the board or commissioner.
(f)iiIn any protest, appeal, or other administrative or judicial action in which the comptroller is a party on the effective date of this article in connection with a duty or function transferred from the comptroller to the State Board on Property Valuation or the commissioner of the State Board on Property Valuation, as applicable, by this article, the board or commissioner is substituted for the comptroller on the effective date of this article.
SECTIONi13A.113.iiThis article 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 article takes effect September 1, 2003.
PART 14. CONFLICTS CLAUSE; EFFECTIVE DATE
ARTICLE 14A. CONFLICTS CLAUSE
SECTIONi14A.01.iiIn 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.
ARTICLE 14B. EFFECTIVE DATE
SECTIONi14B.01.iiExcept as otherwise provided by this Act, this Act takes effect September 1, 2003.
3654 78th Legislature — Regular Session 82nd Day
Amendment No. 1
Amend CSSB 1952 by adding a new SECTION 13A.113 and renumbering all subsequent SECTIONS:
SECTION 13A.113. Section 42.221, Tax Code, is amended to read as follows:
Sec. 42.221. CONSOLIDATED APPEALS FOR MULTICOUNTY PROPERTY
PIPELINE OR ELECTRIC LINE. (a) The owner of property of telecommunications
providers under Section 51.002, Utility Code, or owner of property regulated by the
Railroad Commission, Surface Transportation Board, or the Federal Energy
Regulatory Commission an oil or gas pipeline or electric transmission or distribution
line that runs through or operates in more than one county and is appraised by more
than one appraisal district may appeal an order of an appraisal review board relating to
the property that runs through or operates in more than one county pipeline or electric
line, to property attached to or connected with the pipeline or electric line, or to an
easement or other real property on which the pipeline or electric line is located to the
district court of any county in which a portion of the property pipeline or electric line
is located or operates if the order relating to that portion of the property the pipeline or
electric line is appealed.
(b) A petition for review of each appraisal review board order under this section
must be filed with the court as provided by Section 42.21. The fee for filing each
additional petition for review under this section relating to a pipeline or electric line
after the first petition for review relating to the same property pipeline or electric line
is filed for a tax year is $5.
(c) If only one appeal by the owner of property subject to this section an oil or
gas pipeline or electric line is pending before the court in an appeal from the decision
of an appraisal review board of a district other than the appraisal district for that
county, any party to the suit may, not earlier than the 30th day before and not later
than the 10th day before the date set for the hearing, make a motion to transfer the suit
to a district court of the county in which the appraisal review board from which the
appeal is taken is located. In the absence of a showing that further appeals under this
section will be filed, the court shall transfer the suit.
(d) When the owner files the first petition for review under this section for a
pipeline or electric line for a tax year, the owner shall include with the petition a list of
each appraisal district in which the property pipeline or electric line is appraised for
taxation in that tax year.
(e) The court shall consolidate all the appeals for a tax year relating to a single
property subject to this section pipeline or electric line for which a petition for review
is filed with the court and may consolidate other appeals relating to other property
subject to this section pipelines or electric lines of the same owner if the property is
pipelines or electric lines are located in one or more of the counties on the list required
by Subsection (d). Except as provided by this subsection, on the motion of the owner
of a property subject to this section pipeline or electric line owner the court shall grant
a continuance to provide the owner with an opportunity to include in the proceeding
appeals of appraisal review board orders from additional appraisal districts. The court
may not grant a continuance to include an appeal of an appraisal review board order
that relates to a property the pipeline or electric line in that tax year after the time for
filing a petition for review of that order has expired.
Friday, May 30, 2003 SENATE JOURNAL 3655
(f) This section does not affect the property owner's right to file a petition for
review of an individual appraisal district's order relating to a property subject to this
section pipeline or electric line in the district court in the county in which the appraisal
review board is located.
(g) On a joint motion or the separate motions of at least 60 percent of the
appraisal districts that are defendants in a consolidated suit filed before the 45th day
after the date on which the property owner's petitions for review of the appraisal
review board orders relating to property subject to this section a pipeline or electric
line for that tax year must be filed, the court shall transfer the suit to a district court of
the county named in the motion or motions if that county is one in which one of the
appraisal review boards from which an appeal was taken is located.
(h) An outlet, facility, or location, or property that is subject to Section
321.002(a)(3), and that was first opened before June 1, 2003, is not subject to Section
321.203(l), and shall be governed by the law in effect at the time such outlet, facility,
or location, or property was first opened, and that law shall be continued in effect for
that purpose.
Floor Amendment No. 2
Amend CSSB 1952 as follows:
(1)iiIn SECTION 8A.01 of the bill, in added Section 5.851, Water Code (House committee printing, page 174, line 26), between "Health and Safety Code" and the period, insert ", except that this subchapter does not apply to permits issued under Subchapter L, Chapter 26".
(2)iiIn SECTION 8B.01 of the bill, in added Section 5.132(a)(4), Water Code (House committee printing, page 177, line 18), strike "and".
(3)iiIn SECTION 8B.01 of the bill, in added Section 5.132(a)(5), Water Code (House committee printing, page 177, line 20), between "authorization" and the period, insert the following:
; and
(6)iithe category of entities does not include concentrated animal feeding operations in a major sole source impairment zone that are subject to Subchapter L, Chapter 26
(4)iiIn SECTION 8B.03 of the bill, in added Section 5.5515(b)(1), Water Code (House committee printing, page 180, line 14), between "proposed to be located" and "and any other", insert the following:
, any local government potentially affected by a concentrated animal feeding operation located or proposed to be located in a major sole source impairment zone that is subject to Subchapter L, Chapter 26,
(5)iiIn the recital of SECTION 8B.09 of the bill (House committee printing, page 183, line 10), strike "Subsections (d-1)-(d-9)" and substitute "Subsections (d-1)-(d-10)".
(6)iiIn SECTION 8B.09 of the bill, following added Section 5.556(d-6), Water Code (House committee printing, page 185, between lines 15 and 16), insert the following new subsection and renumber the subsequent subsections accordingly:
3656 78th Legislature — Regular Session 82nd Day
(d-7)iiFor water quality applications for a permit for a concentrated animal feeding operation located or proposed to be located in a major sole source impairment zone that is subject to Subchapter L, Chapter 26, any local government whose sole source of drinking water is downstream of a discharge or proposed discharge is an affected person.
Floor Amendment No. 3
Amend CSSB 1952 in Part 8 of the bill (House committee printing) as follows:
(1)iiIn Section 8A.01 of the bill, in proposed Subsection (b), Section 5.852, Water Code (page 175, line 4), strike "Section 5.854" and substitute "Section 5.853".
(2)iiIn Section 8B.20 of the bill, in proposed Subsection (a-1), Section 382.056, Health and Safety Code (page 194, line 20), strike "Subsection (e)" and substitute "Subsection (o)".
(3)iiStrike Section 8C.12 (page 205, lines 14-25).
Floor Amendment No. 4
Amend CSSB 1952 as follows:
On page 61, line 17, strike "obligate" and insert "redirect."
Floor Amendment No. 5
Amend CSSB 1952 (House committee report) by striking Article 1E (page 3, line 14 through page 4, line 7) in Part 1 of the bill.
Floor Amendment No. 6
Amend CSSB 1952 as follows:
Amend SECTION 2A.01 as follows:
On page 50, line 11, strike "and"
On page 50, line 13 strike "." and add "; and"
On page 50, line 14 insert the following:
"(4) interest earned on the investment of money in the fund."
Floor Amendment No. 7
Amend CSSB 1952 as follows:
In SECTION 2A.01, on page 50, line 5, strike the word "an" and insert the words "a dedicated" before the word "account."
Floor Amendment No. 8
Amend CSSB 1952 (House committee report) as follows:
(1) Strike ARTICLE 1J (page 6, line 16 through page 23, line 21) of the bill.
(2) Strike SECTION 8B.25 (page 197, lines 25-26) of the bill and substitute the following:
SECTION 8B.25. Sections 361.0791, 361.088(d), and 361.122, Health and Safety Code, are repealed.
Floor Amendment No. 9
Amend CSSB 1952 (House committee report) by adding the following appropriately numbered article to Part 2 of the bill:
Friday, May 30, 2003 SENATE JOURNAL 3657
ARTICLE ____. REPAYMENT TO THE ECONOMIC
STABILIZATION FUND
SECTION __.01 Subchapter G, Government Code, is amended by adding Section 403.107 to read as follows:
Section 403.107. REPAYMENT TO THE ECONOMIC STABILIZATION FUND.
(a) Appropriations from the economic stabilization fund shall be repaid to the fund during the succeeding biennium. Except as provided by Subsection (b) of this section, the comptroller during the succeeding biennium shall transfer from the general revenue fund to the economic stabilization fund an amount equal to the amount appropriated from the economic stabilization fund for all or part of the biennium. The comptroller shall transfer one-half of the required amount during the first fiscal year of the succeeding biennium and one-half of the required amount during the second fiscal year of the succeeding biennium, except that the amount transferred during the first fiscal year may be unequal to the amount transferred during the second fiscal year if the comptroller determines that the financial condition of the state makes it necessary to transfer unequal amounts.
(b) The comptroller shall reduce the amount otherwise required to be repaid under this section as necessary to ensure that the amount in the economic stabilization fund does not exceed the limit prescribed by Subsection (g), Section 49-g, Article III, Texas Constitution.
SECTION __.02 The change in law made by this article takes effect Januaryi1,i2004, and appropriations made from the economic stabilization fund by the 78th Legislature shall be repaid to the fund during the state fiscal biennium beginning September 1, 2005, including appropriations made from the fund for the state fiscal year ending August 31, 2003.
Amendment No. 10
Amend CSSBi1952 as follows:
Delete Article 2E beginning on page 57 and replace with the following:
SECTION 2E.01. The heading to Section 391.009, Local Government Code, is amended to read as follows:
Sec. 391.009. ROLE OF STATE AUDITOR, GOVERNOR, AND STATE AGENCIES.
SECTION 2E.02. Section 391.009, Local Government Code, is amended by amending Subsection (a) and adding Subsections (a-1) and (a-2) to read as follows:
(a) To protect the public interest and [or] promote the efficient use of public
funds, the governor, with the technical assistance of the state auditor, may draft and
[shall] adopt:
(1) rules relating to the operation and oversight of a commission;
(2) rules relating to the receipt or expenditure of funds by a commission, including:
(A) restrictions on the expenditure of any portion of commission funds for certain classes of expenses; and
(B) restrictions on the maximum amount of or percentage of commission funds that may be expended on a class of expenses, including indirect costs or travel expenses;
3658 78th Legislature — Regular Session 82nd Day
(3) annual reporting requirements for a commission;
(4) annual audit requirements on funds received or expended by a commission from any source;
(5) rules relating to the establishment and use of standards by which the productivity and performance of each commission can be evaluated; and
(6) guidelines that commissions and governmental units shall follow in carrying out the provisions of this chapter relating to review and comment procedures.
(a-1) The governor may draft and adopt rules under Subsection (a) using negotiated rulemaking procedures under Chapter 2008, Government Code.
(a-2) Based on a risk assessment performed by the state auditor and subject to the legislative audit committee's approval for inclusion in the audit plan under Section 321.013, Government Code, the state auditor's office shall assist the governor as provided by Subsection (a).
SECTION 2E.03. Section 391.0095, Local Government Code, is amended to read as follows:
Sec. 391.0095. AUDIT AND REPORTING REQUIREMENTS. (a) The audit
and reporting requirements under Section 391.009(a) shall include a requirement that
a commission annually report to the state auditor [governor]:
(1) the amount and source of funds received by the commission;
(2) the amount and source of funds expended by the commission;
(3) an explanation of any method used by the commission to compute an expense of the commission, including computation of any indirect cost of the commission;
(4) a report of the commission's productivity and performance during the annual reporting period;
(5) a projection of the commission's productivity and performance during the next annual reporting period;
(6) the results of an audit of the commission's affairs prepared by an independent certified public accountant; and
(7) a report of any assets disposed of by the commission.
(b) The annual audit of a commission may be commissioned [by the governor's
office or] by the commission or at the direction of the governor's office, as determined
by the governor's office, and shall be paid for from the commission's funds.
(c) A commission shall submit any other report or an audit to the state auditor
and [required by] the governor.
(d) If a commission fails to submit a report or audit required under this section
or is determined by the state auditor [governor] to have failed to comply with a rule,
requirement, or guideline adopted under Section 391.009, the state auditor shall report
the failure to the governor's office. The governor may, until the failure is corrected:
(1) appoint a receiver to operate or oversee the commission; or
(2) withhold any appropriated funds of the commission.
(e) A commission shall send to the governor, the state auditor, the comptroller,
and the Legislative Budget Board a copy of each report and audit required under this
section or under Section 391.009. Subject to a risk assessment performed by the state
auditor and to the legislative audit committee's approval for inclusion in the audit plan
under Section 321.013, Government Code, the [The] state auditor may [shall] review
Friday, May 30, 2003 SENATE JOURNAL 3659
SECTION 2E.04. Subsection (e), Section 391.0117, Local Government Code, is amended to read as follows:
(e) A commission shall submit to the state auditor [governor] the commission's
salary schedule, including the salaries of all exempt positions, not later than the 45th
day before the date of the beginning of the commission's fiscal year. If the state
auditor, subject to the legislative audit committee's approval for inclusion in the audit
plan under Section 321.013, Government Code, has recommendations to improve
[governor objects to] a commission's salary schedule or a portion of the schedule, the
state auditor shall report the recommendations to the governor's office. The
governor's office may not allow the portion of the schedule for which [that] the state
auditor has recommendations to [governor objects to may not] go into effect until
revisions or explanations are given that are satisfactory to the governor based on
recommendations from the state auditor [and the governor approves that portion of the
schedule].
SECTION 2E.05. On the effective date of this Act, a rule, requirement, or guideline adopted by the governor relating to the oversight of regional planning commissions remains in effect until amended or repealed by the governor.
Floor Amendment No. 11
Amend CSSB 1952, by adding the following on page 103 at the end of Section 4C.01:
(f) An institution of higher education, as defined by Section 61.003, Education Code, may elect to participate in the system described in this section in the same manner as a state agency. If the institution makes this election and the comptroller approves the election, the institution:
(1) shall comply with this chapter in the same manner as a state agency; and
(2) may not withdraw from the system described in this section without the approval of the comptroller.
Floor Amendment No. 12
Amend CSSB 1952 by striking Article 2G (page 62, line 9, through page 63, line 5, House committee report).
Floor Amendment No. 13
Amend CSSB 1952 by striking Article 1I (page 5, line 11, through page 6, line 15, House committee report).
3660 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 14
Amend CSSB 1952 as follows:
Delete Sections 10A.01 and 10A.02 on page 230 and substitute new Sections 10A.01 and 10A.02 to read as follows:
SECTION 10A.01. Section 72.101, Property Code, is amended by adding Subsections (c) and (d) to read as follows:
"(c) Property distributable in the course of demutualization, rehabilitation, or related reorganization of an insurance company is deemed abandoned one year after the date the property is first distributable if, at the time of the first distribution, the last known address of the owner on the books and records of the holder is known to be incorrect, or the distribution or statements are returned by the post office as undeliverable; and the owner:
(1). has not communicated in writing with the holder or its agent regarding the interest; or
(2). otherwise communicated with the holder regarding the interest as evidenced by a memorandum or other record on file with the holder or its agents.
(d) Property distributable in the course of demutualization, rehabilitation or related reorganization of a mutual insurance company that is not subject to subsection (c) shall be reportable as otherwise provided by this law."
SECTION 10A.02. TRANSITION. New subsection (c) and (d) to Section 72.101, Property Code added by this Act shall be effective June 30, 2003 and reportable as otherwise provided by this law.
Floor Amendment No. 15
Amend CSSB 1952 by adding the following appropriately numbered ARTICLE to PART 1 of the bill and renumbering existing ARTICLES in PART 1 appropriately:
ARTICLE ___. GUBERNATORIAL APPOINTMENTS TO
ADVISORY BODIES
SECTION ___.___. Subchapter F, Chapter 401, Government Code, is amended by adding Section 401.105 to read as follows:
Sec.i401.105.iiNOTICE OF APPOINTMENT TO ADVISORY BODIES. Before the governor appoints an individual to serve on an advisory board, advisory council, or advisory committee for which senate confirmation of the appointment is or is not required, the governor must inform the member of the house of representatives in whose district the proposed appointee resides of the proposed appointment.
Floor Amendment No. 17
Amend CSSB 1952 (House committee report) as follows:
(1)iiStrike SECTIONS 1J.17 and 1J.18 (page 11, lines 8-26).
(2)iiIn SECTION 1J.19(11) of the bill (page 12, line 22), after the semicolon, insert "and".
(3)iiIn SECTION 1J.19(12) of the bill (page 12, line 24), strike the semicolon and substitute a period.
(4)iiStrike SECTIONS 1J.19(13) and (14) (page 12, line 25, through page 13, line 2).
(5)iiStrike SECTION 1J.28 (page 22, line 3, through page 23, line 15).
Friday, May 30, 2003 SENATE JOURNAL 3661
(6)iiIn SECTION 1J.29 of the bill, strike ", and Section 1.06, Texas Geoscience Practice Act (Article 3271b, Vernon's Texas Civil Statutes), as added by this Act" (page 23, lines 19-21).
(7)iiRenumber the SECTIONS of Article 1J appropriately.
Floor Amendment No. 18
Amend CSSB 1952 by striking Section 1P.01 of the bill (page 45, line 22, through page 46, line 9) and substituting:
SECTIONi1P.01.iiSection 1702.002, Occupations Code, is amended by adding Subdivisions (1-a) and (5-a) to read as follows:
(1-a)ii"Board" means the Texas Private Security Board.
(5-a)ii"Department" means the Department of Public Safety of the State of Texas.
SECTIONi1P.02.iiSubchapter A, Chapter 1702, Occupations Code, is amended by adding Section 1702.005 to read as follows:
Sec.i1702.005.iiDEPARTMENT OF PUBLIC SAFETY. (a) The board created under Section 1702.021 is a part of the department. The department shall administer this chapter through the board.
(b)iiA reference in this chapter or another law to the Texas Commission on Private Security means the board.
SECTIONi1P.03.iiSection 1702.021(a), Occupations Code, is amended to read as follows:
(a)iiThe Texas [Commission on] Private Security Board consists of seven [nine]
members appointed by the governor with the advice and consent of the senate as
follows:
(1)iifour [five] public members, each of whom is a citizen of the United
States;
(2)iione member who[:
[(A)]iiis licensed under this chapter as a private investigator;
[(B)iihas been engaged as a private investigator for at least the five years
preceding appointment; and
[(C)iiis not employed by a person who employs another member of the
commission;]
(3)iione member who is licensed under this chapter as an alarm systems
company; and [who:
[(A)iihas been engaged as an alarm systems company for at least the five
years preceding appointment; and
[(B)iiis not employed by a person who employs another member of the
commission;]
(4)iione member who[:
[(A)]iiis licensed under this chapter as the owner or operator of a guard
company[;
[(B)iihas been the owner or operator of the guard company for at least
the five years preceding appointment; and
[(C)iiis not employed by a person who employs another member of the
commission; and
[(5)iione member who:
3662 78th Legislature — Regular Session 82nd Day
[(A)iiholds a license, security officer commission, or registration under
this chapter;
[(B)iihas been engaged in activity regulated by the commission under
this chapter for at least the five years preceding appointment; and
[(C)iiis not employed by a person who employs another member of the
commission].
SECTIONi1P.04.iiSection 1702.025(a), Occupations Code, is amended to read as follows:
(a)iiThe appointed board [commission] members serve staggered six-year terms,
with the terms of two or three appointed members expiring on January 31 of each
odd-numbered year.
SECTIONi1P.05.iiNot later than November 1, 2003, the governor shall appoint the members of the Texas Private Security Board, as required under Section 1702.021, Occupations Code, as amended by this Act. The governor shall stagger the terms of the initial board members, as required under Section 1702.025, Occupations Code, as amended by this Act.
SECTIONi1P.06.ii(a) On November 1, 2003:
(1)iiall functions and activities performed by the Texas Commission on Private Security immediately before that date are transferred to the Texas Private Security Board of the Department of Public Safety of the State of Texas;
(2)iia rule or form adopted by the Texas Commission on Private Security is a rule or form of the Texas Private Security Board and remains in effect until amended or replaced by that board;
(3)iia reference in law or an administrative rule to the Texas Commission on Private Security means the Texas Private Security Board;
(4)iia complaint, investigation, or other proceeding before the Texas Commission on Private Security is transferred without change in status to the Texas Private Security Board, and the Texas Private Security Board assumes, as appropriate and without a change in status, the position of the Texas Commission on Private Security in an action or proceeding to which the Texas Commission on Private Security is a party;
(5)iiall money, contracts, leases, property, and obligations of the Texas Commission on Private Security are transferred to the Texas Private Security Board;
(6)iiall property in the custody of the Texas Commission on Private Security is transferred to the Texas Private Security Board; and
(7)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Texas Commission on Private Security is transferred to the Texas Private Security Board.
(b)iiBefore November 1, 2003, the Texas Commission on Private Security may agree with the Department of Public Safety of the State of Texas to transfer any property of the Texas Commission on Private Security to the Department of Public Safety of the State of Texas to implement the transfer required by this Act.
Friday, May 30, 2003 SENATE JOURNAL 3663
(c)iiIn the period beginning on the effective date of this Act and ending on November 1, 2003, the Texas Commission on Private Security shall continue to perform functions and activities under Chapter 1702, Occupations Code, as if that chapter had not been amended by this Act, and the former law is continued in effect for that purpose.
Floor Amendment No. 19
Amend CSSB 1952, (House committee printing), in Part 1, (page 3, line 14 through page 4, line 7), by striking Article 1E and renumbering existing articles accordingly.
Floor Amendment No. 21
Amend CSSB 1952 by striking ARTICLE 3F of the bill (committee printing page 84 line 10, through page 85, line 21) and renumbering the ARTICLES of the bill as appropriate.
Floor Amendment No. 23
Amend CSSB 1952 (House committee printing) in Part 8 of the bill as follows:
(1) In the introductory language to Section 8B.02 of the bill (page 179, line 14) strike "Subsection (a)" and substitute "Subsections (a) and (b)".
(2) In Section 8B.02 of the bill, in amended Subsection (a), Section 5.551, Water Code (page 179, line 21), strike "or 382" and substitute ", 382, or 401".
(3) In Section 8B.02 of the bill, in amended Subsection (a), Section 5.551, Water Code (page 179, line 26), strike "or 382" and substitute ", 382, or 401".
(4) In Section 8B.02 of the bill, following amended Subsection (a), Section 5.551, Water Code (page 179, between lines 26 and 27), insert:
(b) The commission by rule shall provide for additional notice, opportunity for public comment, or opportunity for hearing to the extent necessary to satisfy a requirement for United States Environmental Protection Agency authorization of a state permit program or United States Nuclear Regulatory Commission authorization of a state permit program.
(5) In Section 8B.02 of the bill, in proposed Subsection (d), Section 5.551, Water Code (page 180, lines 2 and 3), strike "or 382" and substitute ", 382, or 401".
(6) In the introductory language to Section 8B.09 of the bill (page 183, line 10), strike "Subsections (d-1)-(d-9)" and substitute "Subsections (d-1)-(d-10)".
(7) In Section 8B.09 of the bill, in amended Subsection (c), Section 5.556, Water Code (page 183, line 22), strike "(d-1)-(d-5)" and substitute "(d-1)-(d-8)".
(8) In Section 8B.09 of the bill, between proposed Subsections (d-5) and (d-6), Section 5.556, Water Code (page 185, between lines 12 and 13), insert:
(d-6) For applications under Chapter 401, Health and Safety Code, an affected person is a person who resides on or owns property in this state and within two miles of the facility or proposed facility.
(9) In Section 8B.09 of the bill, at the beginning of proposed Subsection (d-6), Section 5.556, Water Code (page 185, line 13), strike "(d-6)" and substitute "(d-7)".
(10) In Section 8B.09 of the bill, in proposed Subsection (d-6), Section 5.556, Water Code (page 185, line 14), strike "(d-1)-(d-5)" and substitute "(d-1)-(d-6)".
3664 78th Legislature — Regular Session 82nd Day
(11) In Section 8B.09 of the bill, at the beginning of proposed Subsection (d-7), Section 5.556, Water Code (page 185, line 16), strike "(d-7)" and substitute "(d-8)".
(12) In Section 8B.09 of the bill, at the beginning of proposed Subsection (d-8), Section 5.556, Water Code (page 185, line 24), strike "(d-8)" and substitute "(d-9)".
(13) In Section 8B.09 of the bill, at the beginning of proposed Subsection (d-9), Section 5.556, Water Code (page 185, line 27), strike "(d-9)" and substitute "(d-10)".
Floor Amendment No. 24
Amend CSSB 1952 (House committee report) by adding the following appropriately numbered ARTICLE to PART 8 and renumbering subsequent ARTICLES in PART 8 accordingly:
ARTICLEi___.iiMEDICAL WASTE
SECTIONi__.01. Section 361.560, Health and Safety Code, is amended by adding Subdivisions (2) and (4) to read as follows:
(2)ii"Health care related facility" includes:
(A)iiambulatory surgical centers;
(B)iibirthing centers;
(C)iiblood banks and blood drawing centers;
(D)iiclinics, including medical, dental, and veterinary clinics;
(E)iifuneral establishments;
(F)iihospitals;
(G)iipharmacies;
(H)iiprofessional offices, including the offices of physicians, dentists, and acupuncturists; and
(I)iiother facilities included by commission rule.
(4)ii"Special waste" includes:
(A)iianimal wastes and bedding materials that have been exposed to pathogens;
(B)iibulk blood, bulk blood products, or bulk human body fluids;
(C)iimicrobiological waste, including discarded cultures, vaccines, disposable culture dishes, and other disposable devices used in microbiological laboratories;
(D)iipathological wastes, including human materials removed during surgery, autopsy, or other medical procedures; and
(E)iisharps, including hypodermic needles, hypodermic syringes with attached needles, and contaminated items including scalpel blades, razor blades, disposable razors, disposable scissors used in medical procedures, intravenous stylets, rigid introducers, and broken glass.
SECTIONi__.02.iiSubchapter S, Chapter 361, Health and Safety Code, is amended by adding Section 361.562 to read as follows:
Sec.i361.562.iiMOBILE VEHICLES USED FOR TREATMENT OF SPECIAL WASTE FROM HEALTH CARE RELATED FACILITIES. A person who, in accordance with commission rules, uses a mobile vehicle to provide on-site treatment of special waste from health care related facilities may treat, on the site of a hospital registered with the commission as a medical waste collection station, special waste:
(1)iigenerated at the hospital; or
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(2)iigenerated at another health care related facility and transported to the hospital site by the mobile unit if the hospital agrees.
SECTIONi__.03. Not later than December 1, 2003, the Texas Commission on Environmental Quality shall adopt all rules necessary to implement Section 361.562, Health and Safety Code, as added by this article.
Floor Amendment No. 25
Amend CSSB 1952 (House committee report) in Part 8 of the bill by adding the following appropriately numbered article and renumbering the other articles appropriately:
ARTICLE ____. AIR QUALITY STANDARDS
SECTIONi____.iiSubchapter H, Chapter 2155, Government Code, is amended by adding Section 2155.451 to read as follows:
Sec.i2155.451.iiVENDORS THAT MEET OR EXCEED AIR QUALITY STANDARDS. (a) This section applies only to a contract to be performed, wholly or partly, in an affected county, as that term is defined by Section 386.001, Health and Safety Code.
(b)iiThe commission and other state agencies procuring goods or services may give preference to goods or services of a vendor that demonstrates that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality.
(c)iiThe preference may be given only if the cost to the state for the goods or services would not exceed 105 percent of the cost of the goods or services provided by a vendor who does not meet the standards.
SECTIONi____.iiSubchapter Z, Chapter 271, Local Government Code, is amended by adding Section 271.907 to read as follows:
Sec.i271.907.iiVENDORS THAT MEET OR EXCEED AIR QUALITY STANDARDS. (a) In this section, "governmental agency" has the meaning assigned by Section 271.003.
(b)iiThis section applies only to a contract to be performed, wholly or partly, in an affected county, as that term is defined by Section 386.001, Health and Safety Code.
(c)iiA governmental agency procuring goods or services may give preference to goods or services of a vendor that demonstrates that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality.
(d)iiThe preference may be given only if the cost to the governmental agency for the goods or services would not exceed 105 percent of the cost of the goods or services provided by a vendor who does not meet the standards.
Floor Amendment No. 26
Amend CSSB 1952 (House committee printing) in PART 8 of the bill by adding the following appropriately numbered ARTICLE to PART 8 and renumbering subsequent ARTICLES in PART 8 accordingly:
3666 78th Legislature — Regular Session 82nd Day
ARTICLE ____. REGULATORY FLEXIBILITY AND
REGULATORY STRUCTURE
SECTIONi____.iiSubchapter D, Chapter 5, Water Code, is amended by adding Sections 5.135 and 5.136 to read as follows:
Sec.i5.135.iiREGULATORY FLEXIBILITY. (a) The commission by order may exempt an applicant from a requirement of a statute or commission rule regarding the control or abatement of pollution if the applicant proposes to control or abate pollution by an alternative method or by applying an alternative standard that is:
(1)iias protective of the environment and the public health as the method or standard prescribed by the statute or commission rule that would otherwise apply; and
(2)iinot inconsistent with federal law.
(b)iiThe commission may not exempt an applicant under this section unless the applicant can demonstrate to the commission that the applicant's proposed project will result in a level of protection of environmental quality that is equal to or greater than the level of protection afforded by existing standards.
(c)iiThe commission by rule shall specify the procedure for obtaining an exemption under this section.
(d)iiThe commission's order must describe the alternative method or standard and must condition the exemption on compliance with the method or standard as the order prescribes.
(e)iiThe commission by rule may establish a reasonable fee for applying for an exemption under this section.
(f)iiThe violation of an order issued under this section is punishable as if it were a violation of the statute or rule from which the order grants an exemption.
(g)iiThe commission may not exempt an applicant from a requirement of a statute or regulation regarding the storing, handling, processing, or disposing of low-level radioactive materials.
(h)iiIn implementing the program of regulatory flexibility authorized by this section, the commission shall:
(1)iiendorse alternative methods that will comply with legal requirements and impose the least onerous restrictions on business, including economic benefit; and
(2)iiwork to achieve consistent and predictable results for the regulated community and shorter waits for permit issuance.
Sec.i5.136.iiSTRATEGICALLY DIRECTED REGULATORY STRUCTURE. (a) The commission may develop a strategically directed regulatory structure that is designed to use innovative programs to provide enhanced environmental benefit and reward compliance performance.
(b)iiThe strategically directed regulatory structure may offer incentives based on a person's compliance performance and any voluntary measures undertaken by the person to improve environmental quality.
(c)iiAn innovative program offered as part of a strategically directed regulatory structure must:
(1)iiprovide incentives to a person in return for benefits to the environment that exceed benefits that would result from compliance with applicable legal requirements under the commission's jurisdiction; and
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(2)iibe consistent with other law and any requirement necessary to maintain federal program authorization.
Floor Amendment No. 27
Amend CSSB 1952 as follows:
(1)iiIn SECTION 8A.01 of the bill, in proposed Subchapter S, Chapter 5, Water Code, between Sections 5.851 and 5.852 (House Committee Printing page 174, between lines 26 and 27), insert the following:
Sec.i5.8515.iiDEFINITION. In this subchapter, "permit" means a permit, approval, registration, or other form of authorization required by law for a person to engage in an action.
(2)iiIn SECTION 8A.01 of the bill, in proposed Subsection (b), Section 5.852, Water Code (House Committee Printing page 175, line 4), strike "5.854" and substitute "5.853".
(3)iiIn SECTION 8A.01 of the bill, in proposed Subsection (c), Section 5.852, Water Code, between "review" and "a" (House Committee Printing page 175, line 5), insert "and for copying".
(4)iiIn SECTION 8A.01 of the bill, in proposed Section 5.853, Water Code, following Subsection (c) (House Committee Printing page 176, between lines 6 and 7), insert the following:
(d)iiAn applicant for a permit under Chapter 382, Health and Safety Code, shall also publish notice of the preliminary decision in an alternative language newspaper as required by commission rule. This requirement is waived if such a publication does not exist or if the publisher refuses to publish notice.
(5)iiIn SECTION 8A.01 of the bill, in proposed Subsection (b), Section 5.855, Water Code (House Committee Printing page 177, line 4), strike "statement" and substitute "fact sheet".
(6)iiAt the end of ARTICLE 8A of the bill (House Committee Printing page 177, between lines 5 and 6), insert the following:
SECTION 8A.02. The changes in law made by this article apply only to an application for a permit that is filed with the Texas Commission on Environmental Quality on or after September 1, 2003. An application for a permit that is filed before that date is governed by the law in effect on the date it was filed, and that law is continued for that purpose.
(7)iiIn SECTION 8B.01 of the bill, in proposed Subsection (d), Section 5.132, Water Code (House Committee Printing page 178, line 10), strike "the comments" and substitute "written comments".
(8)iiIn SECTION 8B.03 of the bill, in proposed Subsection (a), Section 5.5515, Water Code (House Committee Printing page 180, line 10), strike "the notice" and substitute "notice".
(9)iiIn SECTION 8B.03 of the bill, at the end of proposed Section 5.5515, Water Code (House Committee Printing page 181, between lines 4 and 5), insert the following:
(d)iiAn applicant for a permit under Chapter 382, Health and Safety Code, shall also publish notice of the preliminary decision in an alternative language newspaper as required by commission rule. This requirement is waived if such a publication does not exist or if the publisher refuses to publish notice.
3668 78th Legislature — Regular Session 82nd Day
(10)iiIn the recital to SECTION 8B.09 of the bill, between "(d-1)-(d-9)" and "to" (House Committee Printing page 183, line 10), insert "and (g)".
(11)iiIn SECTION 8B.09 of the bill, in amended Subsection (c), Section 5.556, Water Code (House Committee Printing page 183, line 22), strike "(d-1)-(d-5)" and substitute "(d-1)-(d-7)".
(12)iiIn SECTION 8B.09 of the bill, in amended Subsection (c), Section 5.556, Water Code (House Committee Printing page 183, lines 23 and 24), strike "commission's office of hearings examiners" and substitute "State Office of Administrative Hearings".
(13)iiIn SECTION 8B.09 of the bill, in amended Section 5.556, Water Code (House Committee Printing page 185, lines 16-23), strike Subsection (d-7) and substitute the following:
(d-7)iiA group or association may be an affected person if it is composed of one or more members who would otherwise have standing to request a hearing in their own right, the interests the group or association seeks to protect are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of the individual members. A governmental entity with authority under state law over issues relating to the permit application may be an affected person. The commission by rule shall establish criteria for determining whether a group, association, or governmental entity is an affected person.
(14)iiIn SECTION 8B.09 of the bill, in proposed Subsection (d-8), Section 5.556, Water Code (House Committee Printing page 185, line 25), strike "commission's office of hearings examiners" and substitute "State Office of Administrative Hearings".
(15)iiIn SECTION 8B.09 of the bill, at the end of amended Section 5.556, Water Code (House Committee Printing page 186, between lines 8 and 9), insert the following:
(g)iiNotice of a contested case hearing granted under this subchapter shall be mailed to the applicant, the office of public interest counsel, the executive director, and the persons whose hearing requests have been granted. Public notice of a contested case hearing is not required.
(16)iiIn SECTION 8B.10 of the bill, in amended Subsection (d), Section 26.028, Water Code (House Committee Printing page 187, lines 1-15), strike Subdivisions (3), (4), and (5) and substitute the following:
(3)iifor NPDES permits, notice and the opportunity to request a public meeting shall be given in compliance with NPDES program requirements, and the commission shall consider and respond to all timely received and significant written public comment; and
(4)iithe commission determines that an applicant's compliance history for
the preceding five years [under the method for evaluating compliance history
developed by the commission under Section 5.754] raises no issues regarding the
applicant's ability to comply with a material term of its permit.
(17)iiStrike SECTION 8B.12 of the bill (House Committee Printing page 188, line 21, through page 189, line 19) and substitute the following:
SECTIONi8B.12. Section 361.088, Health and Safety Code, is amended by amending Subsection (e) and adding Subsection (h) to read as follows:
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(e)iiAfter complying with Sections 5.5515-5.555 [5.552-5.555], Water Code, the
commission, without providing an opportunity for a contested case hearing, may act
on an application to renew a permit for:
(1)iistorage of hazardous waste in containers, tanks, or other closed vessels if the waste:
(A)iiwas generated on-site; and
(B)iidoes not include waste generated from other waste transported to
the site; [and]
(2)iiprocessing of hazardous waste if:
(A)iithe waste was generated on-site;
(B)iithe waste does not include waste generated from other waste transported to the site; and
(C)iithe processing does not include thermal processing; or
(3)iitreatment, storage, or disposal of solid waste if the renewal application does not include any changes to authorization provided by the existing permit.
(h)iiThe commission may act on an application for a new permit, Class 3 modification, or major amendment for post-closure care or corrective action at a solid waste management facility if notice and opportunity to request a nonadjudicative hearing under Subchapter S, Chapter 5, Water Code, have been given.
(18)iiIn SECTION 8B.17 of the bill, in amended Section 382.05191, Health and Safety Code (House Committee Printing page 191, lines 20-26), strike Subsection (a) and substitute the following:
(a)iiAn applicant for a permit under Section 382.05183, 382.05185(c) or (d),
382.05186, or 382.0519 shall publish notice, including notice of the opportunity for
nonadjudicative hearing [of intent to obtain the permit] in accordance with Subchapter
S, Chapter 5, Water Code [Section 382.056]. An applicant for a permit under Section
382.05186(b) shall publish notice, including notice of an opportunity for
nonadjudicative hearing under Section 382.05197.
(19)iiIn SECTION 8B.20 of the bill, in proposed Subsection (a-1), Section 382.056, Health and Safety Code (House Committee Printing page 194, line 18), strike "notice but" and substitute "notice, but".
(20)iiIn SECTION 8B.20 of the bill, in proposed Subsection (a-1), Section 382.056, Health and Safety Code (House Committee Printing page 194, line 20), strike "(e)" and substitute "(o)".
(21)iiIn SECTION 8B.20 of the bill, in amended Section 382.056, Health and Safety Code (House Committee Printing page 194, line 21, through page 195, line 6), strike Subsection (a-2) and substitute the following:
(a-2)iiAn application for a permit amendment under this section is not subject to notice or contested case hearing if the total emissions increase from all facilities authorized under the amended permit will meet the de minimis criteria established by commission rule and the emissions will not change in character. An application for a permit amendment for a facility affected by Section 382.020 is not subject to notice or contested case hearing if the total emissions increase from all facilities authorized under the permit amendment is not significant and will not change in character. A finding under this subsection that a total emissions increase is not significant must be made in the same manner as a finding made under Section 382.05196.
3670 78th Legislature — Regular Session 82nd Day
(22)iiStrike SECTION 8B.26 of the bill (House Committee Printing page 197, line 27, through page 198, line 5), and substitute the following:
SECTIONi8B.26. Sections 361.534(b), 382.0518(h) and (i), 382.05191(b) and (c), 382.05197(b) and (c), 382.056(b)-(n) and (p), and 382.058, Health and Safety Code, are repealed.
SECTIONi8B.27. The changes in law made by this article apply only to an application for a permit that is filed with the Texas Commission on Environmental Quality on or after September 1, 2003. An application for a permit that is filed before that date is governed by the law in effect on the date it was filed, and that law is continued for that purpose.
(23)iiAt the end of ARTICLE 8C of the bill (House committee printing page 207, between lines 25 and 26), insert the following:
SECTIONi8C.15. (a) The changes in law made by this article apply only to an action taken by the Texas Commission on Environmental Quality on or after the effective date of this article.
(b)iiThis article 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 article takes effect September 1, 2003.
Floor Amendment No. 28
Amend Floor Amendment No. 27 to CSSB 1952 as follows:
1) On page 2, strike lines 25 through 29.
2) On page 3, strike lines 12 through 15.
Floor Amendment No. 30
Amend CSSB 1952 (House committee report) as follows:
(1)iiIn SECTION 8B.16, in the introductory language (page 191, line 2), strike "Section 382.0518(b)" and substitute "Section 382.0518".
(2)iiIn SECTION 8B.16, in the introductory language (page 191, line 3), between "amended" and "to", insert "by adding Subsection (a-1) and amending Subsection (b)".
(3)iiIn SECTION 8B.16, in amended Section 382.0518, Health and Safety Code (page 191, between lines 3 and 4), insert the following:
(a-1)iiTo promote administrative efficiency in the permitting process, the commission may provide alternate means of complying with the requirements of this section by adopting rules to establish a plant-wide applicability limitations program or a clean unit program implementing regulations adopted by the United States Environmental Protection Agency under Parts C and D, Title I, of the federal Clean Air Act (42 U.S.C. Sections 7470-7515), as amended, that allows for:
(1)iithe construction of a new facility at a group of facilities for which a preconstruction permit under this section has been issued if the group of facilities, according to the program adopted:
(A)iihas been designated a clean unit; or
(B)iiis subject to a plant-wide applicability limit; or
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(2)iithe modification of an existing facility for which a preconstruction permit under this section has been issued, if the facility, according to the program adopted:
(A)iihas been designated a clean unit; or
(B)iiis subject to a plant-wide applicability limit.
Floor Amendment No 31
Amend CSSB 1952 by striking Section 382.056(a), Health and Safety Code, as amended by SECTION 8B.20 of the bill (committee printing page 193, line 7 through page 194, line 14), and substituting the following:
(a)iiAn [Except as provided by Section 382.0518(h), an] applicant for a permit or
permit amendment under Section 382.0518 or a permit renewal review under Section
382.055 shall publish notice of a preliminary decision on [intent to obtain] the permit,
permit amendment, or permit review and provide an opportunity for a contested case
hearing as provided by Subchapter M, Chapter 5, Water Code [not later than the 30th
day after the date the commission determines the application to be administratively
complete. The commission by rule shall require an applicant for a federal operating
permit under Section 382.054 to publish notice of intent to obtain a permit, permit
amendment, or permit review consistent with federal requirements and with the
requirements of Subsection (b). The applicant shall publish the notice at least once in
a newspaper of general circulation in the municipality in which the facility or federal
source is located or is proposed to be located or in the municipality nearest to the
location or proposed location of the facility or federal source. If the elementary or
middle school nearest to the facility or proposed facility provides a bilingual
education program as required by Subchapter B, Chapter 29, Education Code, the
applicant shall also publish the notice at least once in an additional publication of
general circulation in the municipality or county in which the facility is located or
proposed to be located that is published in the language taught in the bilingual
education program. This requirement is waived if such a publication does not exist or
if the publisher refuses to publish the notice. The commission by rule shall prescribe
the form and content of the notice and when notice must be published. The
commission may require publication of additional notice]. The commission by rule
shall prescribe alternative procedures for publication of the notice in a newspaper if
the applicant is a small business stationary source as defined by Section 382.0365 and
will not have a significant effect on air quality. The alternative procedures must be
cost-effective while ensuring adequate notice. [Notice required to be published under
this section shall only be required to be published in the United States.]
Floor Amendment No. 32
Amend CSSB 1952 in PART 8 of the bill, ARTICLE 8B (House committee report, page 197, lines 11-19), by striking SECTION 8B.23 and substituting the following:
SECTIONi8B.23.ii(a)iiSection 382.065, Health and Safety Code, as added by Chapter 965, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
3672 78th Legislature — Regular Session 82nd Day
Sec.i382.065.iiCERTAIN LOCATIONS FOR OPERATING CONCRETE
CRUSHING FACILITY PROHIBITED. (a) The commission by rule shall prohibit
the [location of or] operation of a concrete crushing facility 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.
(b)iiA change in law made by this section 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 section.
Floor Amendment No. 33
Amend CSSB 1952 as follows:
(1)iiIn SECTION 8C.06 of the bill, in amended Subsection (d), Section 27.051, Water Code, between "injection well" and "is in the public interest" (House committee printing page 199, line 24), insert "for the disposal of hazardous waste".
(2)iiIn SECTION 8C.06 of the bill, in amended Subdivision (2), Subsection (d), Section 27.051, Water Code, between "available" and the semicolon (House Committee Printing page 200, line 5), insert "to manage the pertinent type and class of hazardous waste".
(3)iiIn SECTION 8C.06 of the bill, in amended Subdivision (3), Subsection (d),
Section 27.051, Water Code (House Committee Printing page 200, lines 6 and 7),
strike "if the injection well will be used for the disposal of hazardous waste," and
substitute "[if the injection well will be used for the disposal of hazardous waste,]".
(4)iiAt the end of ARTICLE 8C of the bill (House committee printing page 207, between lines 25 and 26), insert the following:
SECTIONi8C.15.iiSection 27.051(d), Water Code, as amended by this article, applies only to an application for a disposal or injection well permit that is pending on or is filed on or after the effective date of this article.
SECTIONi8C.16.iiThis article 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 article takes effect September 1, 2003.
Friday, May 30, 2003 SENATE JOURNAL 3673
Floor Amendment No. 34
Amend CSSB 1952 (House committee report) by adding the following appropriately numbered ARTICLE to PART 8 of the bill and renumbering subsequent ARTICLES in PART 8 accordingly:
ARTICLE ____. VALIDATION OF CERTAIN WATER QUALITY RULES
SECTION __.01.iiVALIDATION OF CERTAIN WATER QUALITY RULES. Rules adopted by the Texas Commission on Environmental Quality under Section 26.040, Water Code, before the effective date of this Act are validated as of the dates they were adopted and remain valid until they are modified or repealed by the commission.
Floor Amendment No. 36
Amend CSSB 1952 in PART 8 of the bill by inserting the following appropriately numbered ARTICLE and renumbering the subsequent ARTICLES of the bill accordingly:
ARTICLE 8__. FINANCIAL SECURITY REQUIREMENTS FOR CERTAIN PERSONS PERFORMING OPERATIONS WITHIN THE JURISDICTION OF THE RAILROAD COMMISSION OF TEXAS
SECTIONi8__.01.iiEffective September 1, 2004, Section 85.2021, Natural Resources Code, is amended to read as follows:
Sec.i85.2021.iiDRILLING PERMIT FEE. (a) With each application or materially amended application for a permit to drill, deepen, plug back, or reenter a well, the applicant shall submit to the commission a nonrefundable fee of:
(1)ii$200 if the total depth of the well is 2,000 feet or less;
(2)ii$225 if the total depth of the well is greater than 2,000 feet but less than or equal to 4,000 feet;
(3)ii$250 if the total depth of the well is greater than 4,000 feet but less than or equal to 9,000 feet;
(4)ii$300 if the total depth of the well is greater than 9,000 feet.
(b)iiAn applicant shall submit an additional nonrefundable fee of $200 when a
Rule 37 spacing or a Rule 38 density exception review is requested [required].
(c)iiAn applicant shall submit an additional nonrefundable fee of $150 when requesting that the commission expedite the application for a permit to drill, deepen, plug back, or reenter a well.
(d)iiWith each application for an extension of time to plug a well pursuant to commission rules, an applicant shall submit to the commission a nonrefundable fee of $300, unless the applicant has filed a bond, letter of credit, or cash deposit under Section 91.104(b)(1), (2), or (3).
(e)iiAll fees collected under this section shall be deposited in the state oil-field cleanup fund.
SECTIONi8__.02.iiSection 91.104, Natural Resources Code, is amended to read as follows:
Sec.i91.104.iiBONDS AND ALTERNATE FORMS OF FINANCIAL
SECURITY. (a) The commission shall require a bond or an alternate form of financial
security to be filed with the commission as provided by Subsection (b) [of this
section].
3674 78th Legislature — Regular Session 82nd Day
(b)iiA person required to file a bond or alternate form of financial security under Section 91.103 may choose to file:
(1)iian individual bond as provided under Section 91.1041;
(2)iia blanket bond as provided under Section 91.1042;
(3)iia letter of credit or cash deposit in the same amount as required for an individual bond under Section 91.1041 or a blanket bond under Section 91.1042;
(4)iia nonrefundable annual fee of $1,000, if[:
[(A)iithe commission determines that individual and blanket bonds as
specified by Subdivisions (1) and (2) are not obtainable at reasonable prices; and
[(B)]iithe person states and commission records confirm that the person
has [can demonstrate to the commission] an acceptable record of compliance with all
commission rules, orders, licenses, permits, or certificates that relate to safety or the
prevention or control of pollution for the previous 48 months and the person and, if a
firm, partnership, joint stock association, corporation, or other organization, its
officers, directors, general partners, or owners of more than 25 percent ownership
interest or any trustee:
(A)i[(i)]iihas no outstanding violations of such commission rules,
orders, licenses, permits, or certificates;
(B)i[(ii)]iihas paid all administrative, civil, and criminal penalties, if any,
relating to any violation of such commission rules, orders, licenses, permits, or
certificates; and
(C)i[(iii)]iihas paid all reimbursements of any costs and expenses
incurred by the commission in relation to any violation of such commission rules,
orders, licenses, permits, or certificates; [or]
(5)iia nonrefundable annual fee equal to seven [12-1/2] percent of the bond
that otherwise would be required; or
(6)iiif the person operates wells, another form of financial security authorized by rules adopted by the commission under Subsection (b-1).
(b-1)iiThe commission by rule may authorize a person who operates wells to file a form of financial security other than those provided by Subsections (b)(1)-(5), including insurance. The rules must require the security to be in an amount sufficient to ensure the plugging of the person's wells.
(c)iiA person who chooses to file a form of financial security other than a bond, letter of credit, or cash deposit shall also submit a fee of $300 for each application to extend the time to plug a well in accordance with Section 85.2021. A person may not be required to file a bond, letter of credit, or cash deposit as a condition of receiving an extension under that section.
(d)iiThis subsection does not apply to the operation of bay or offshore wells or the storage, handling, treatment, reclamation, or disposal of oil and gas waste. A person who engages in more than one activity or operation for which a bond or alternate form of financial security is required under this subchapter is not required to file a separate bond or alternate form of financial security for each activity or operation in which the person is engaged. The person is required to file a bond or alternate form of financial security only in the amount required for the activity or operation in which the person engages for which a bond or alternate form of financial
Friday, May 30, 2003 SENATE JOURNAL 3675
SECTIONi8__.03.iiEffective September 1, 2004, Section 91.104, Natural Resources Code, is amended to read as follows:
Sec.i91.104.iiBONDS AND ALTERNATE FORMS OF FINANCIAL
SECURITY. (a) The commission shall require a bond or an alternate form of financial
security to be filed with the commission as provided by Subsection (b) [of this
section].
(b)iiA person required to file a bond or alternate form of financial security under Section 91.103 may choose to file:
(1)iian individual bond as provided under Section 91.1041;
(2)iia blanket bond as provided under Section 91.1042;
(3)iia letter of credit or cash deposit in the same amount as required for an individual bond under Section 91.1041 or a blanket bond under Section 91.1042;
(4)iia nonrefundable annual fee [of $1,000, if:
[(A)iithe commission determines that individual and blanket bonds as
specified by Subdivisions (1) and (2) are not obtainable at reasonable prices; and
[(B)iithe person can demonstrate to the commission an acceptable record
of compliance with all commission rules, orders, licenses, permits, or certificates that
relate to safety or the prevention or control of pollution for the previous 48 months
and the person and, if a firm, partnership, joint stock association, corporation, or other
organization, its officers, directors, general partners, or owners of more than 25
percent ownership interest or any trustee:
[(i)iihas no outstanding violations of such commission rules, orders,
licenses, permits, or certificates;
[(ii)iihas paid all administrative, civil, and criminal penalties, if any,
relating to any violation of such commission rules, orders, licenses, permits, or
certificates; and
[(iii)iihas paid all reimbursements of any costs and expenses
incurred by the commission in relation to any violation of such commission rules,
orders, licenses, permits, or certificates; or
[(5)iia nonrefundable annual fee] equal to:
(A)iieight [12-1/2] percent of the bond that otherwise would be required
if the financial security is required to be filed before September 1, 2005;
(B)iinine percent of the bond that otherwise would be required if the financial security is required to be filed on or after September 1, 2005, and before September 1, 2006; and
(C)ii10 percent of the bond that otherwise would be required if the financial security is required to be filed on or after September 1, 2006; or
(5)iiif the person operates wells, another form of financial security authorized by rules adopted by the commission under Subsection (b-1).
(b-1)iiThe commission by rule may authorize a person who operates wells to file a form of financial security other than those provided by Subsections (b)(1)-(5), including insurance. The rules must require the security to be in an amount sufficient to ensure the plugging of the person's wells.
3676 78th Legislature — Regular Session 82nd Day
(c)iiA person who chooses to file a form of financial security other than a bond, letter of credit, or cash deposit shall also submit a fee of $300 for each application to extend the time to plug a well in accordance with Section 85.2021. A person may not be required to file a bond, letter of credit, or cash deposit as a condition of receiving an extension under that section.
(d)iiThis subsection does not apply to the operation of bay or offshore wells or the storage, handling, treatment, reclamation, or disposal of oil and gas waste. A person who engages in more than one activity or operation for which a bond or alternate form of financial security is required under this subchapter is not required to file a separate bond or alternate form of financial security for each activity or operation in which the person is engaged. The person is required to file a bond or alternate form of financial security only in the amount required for the activity or operation in which the person engages for which a bond or alternate form of financial security in the greatest amount is required. The bond or alternate form of financial security filed covers all of the activities and operations for which a bond or alternate form of financial security is required under this subchapter.
SECTIONi8__.04.iiSection 91.1042, Natural Resources Code, is amended to read as follows:
Sec.i91.1042.iiBLANKET BOND. (a) A person required to file a bond or alternate form of financial security under Section 91.103 who operates wells may file a blanket bond to cover all wells and operations for which a bond or alternate form of financial security is required as follows:
(1)iia person who operates at least one well but not more than 10 wells [10
or fewer wells or performs other operations] shall file a $15,000 [$25,000] blanket
bond;
(2)iia person who operates more than 10 but fewer than 25 [100] wells shall
file a $35,000 [$50,000] blanket bond; [and]
(3)iia person who operates 25 [100] or more wells but fewer than 100 wells
shall file a $50,000 [$250,000] blanket bond;
(4)iia person who operates 100 or more wells but fewer than 150 wells shall file a $100,000 blanket bond;
(5)iia person who operates 150 or more wells but fewer than 200 wells shall file a $175,000 blanket bond; and
(6)iia person who operates 200 or more wells shall file a $250,000 blanket bond.
(b)iiNotwithstanding Subsection (a), the commission by rule shall set the amount
of the bond for an operator of bay or offshore wells at a reasonable amount that
exceeds the amount provided by Subsection (a)(1), (2), [or] (3), (4), (5), or (6), as
applicable.
SECTIONi8__.05.iiSection 91.107, Natural Resources Code, is amended to read as follows:
Sec.i91.107.iiNEW BOND, LETTER OF CREDIT, OR CASH DEPOSIT.
Notwithstanding Section 91.104, if an active or inactive well is transferred, sold, or
assigned by its operator, the commission shall require the party acquiring the well to
provide financial security by means of a [file a new] bond, letter of credit, or cash
deposit in an appropriate amount as provided by Section 91.104(b)(1), (2), or (3), and
Friday, May 30, 2003 SENATE JOURNAL 3677
SECTIONi8__.06.iiSection 91.109(b), Natural Resources Code, as effective September 1, 2004, is amended to read as follows:
(b)iiIn addition to the financial security requirements of Subsection (a) and
Section 91.104(b), a person required to file a bond, letter of credit, or cash deposit
under Section 91.103 who is involved in activities other than the ownership or
operation of wells must file the bond, letter of credit, or cash deposit at the time of
filing or renewing an organization report required by Section 91.142 according to the
following schedule [in an amount equal to]:
(1)iino bond, letter of credit, or cash deposit if the person is a:
(A)iilocal distribution company;
(B)iigas marketer;
(C)iicrude oil nominator;
(D)iifirst purchaser;
(E)iiwell servicing company;
(F)iisurvey company;
(G)iisaltwater hauler;
(H)iigas nominator;
(I)iigas purchaser; or
(J)iiwell plugger [$250,000]; or
(2)iia bond, letter of credit, or cash deposit in an amount not to exceed
$25,000 if the person is involved in an activity that is not associated with the
ownership or operation of wells and is not listed in Subdivision (1) [a lesser amount
determined by the commission if the person is able to demonstrate that the risk
associated with an operation or group of operations warrants a lesser amount].
SECTIONi8__.07.iiSections 10, 18, 20, 22, 24, and 27, Chapter 1233, Acts of the 77th Legislature, Regular Session, 2001, are repealed.
SECTIONi8__.08.iiThe changes in law made by this article apply only to a person required to file a bond or alternate form of financial security under Section 91.103 or 91.107, Natural Resources Code, on or after the effective date of this article. A person required to file a bond or alternate form of financial security under Section 91.103 or 91.107, Natural Resources Code, before the effective date of this article is governed by the law as it existed immediately before the effective date of this article, and that law is continued in effect for that purpose.
SECTIONi8__.09.ii(a) Except as provided by Subsection (b) of this section, this article 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 article takes effect September 1, 2003.
3678 78th Legislature — Regular Session 82nd Day
(b)iiSection 91.109(b), Natural Resources Code, as amended by this article, takes effect September 1, 2004.
Floor Amendment No. 37
Amend CSSB 1952 by adding the following and renumbering the subsequent sections accordingly:
Section 49.067, Water Code is amended to read as follows:
(a) A district shall contract, and be contracted with, in the name of the district.
(b) Notwithstanding any other law, a contract for technical, scientific, legal, fiscal, or other professional services must be approved by the board unless specifically delegated by board action, and terms and conditions of such contract, including the terms for payment, are subject to the decision of the board unless specifically delegated by board actions. The Board through this action cannot abrogate its fiscal responsibility.
Floor Amendment No. 38
Amend CSSB 1952 (House committee printing) by adding the following appropriately numbered ARTICLE to PART 8 of the bill and renumbering subsequent ARTICLES in PART 8 accordingly:
ARTICLE ____. CONSTRUCTION NEAR PIPELINE
SECTIONi____.iiChapter 756, Health and Safety Code, is amended by adding Subchapter G to read as follows:
SUBCHAPTER G. CONSTRUCTION AFFECTING PIPELINE
EASEMENTS AND RIGHTS-OF-WAY
Sec.i756.101.iiDEFINITIONS. In this subchapter:
(1)ii"Construction" means a building, structure, driveway, roadway, or other construction any part of which is physically located on, across, over, or under the easement or right-of-way of a pipeline facility or that physically impacts or creates a risk to a pipeline facility.
(2)ii"Constructor" means a person that builds, operates, repairs, replaces, or maintains a construction or causes a construction to be built, operated, repaired, maintained, or replaced.
(3)ii"Pipeline facility" means a pipeline used to transmit or distribute natural gas or to gather or transmit oil, gas, or the products of oil or gas.
Sec.i756.102.iiAPPLICABILITY. This subchapter applies to a construction or the repair, replacement, or maintenance of a construction unless there is a written agreement, including a Texas Department of Transportation right-of-way agreement, to the contrary between the owner or operator of the affected pipeline facility and the person that places or causes a construction to be placed on the easement or right-of-way of a pipeline facility.
Sec.i756.103.iiPROHIBITION OF CONSTRUCTION WITHOUT NOTICE. A person may not build, repair, replace, or maintain a construction on, across, over, or under the easement or right-of-way for a pipeline facility unless notice of the construction is given the operator of the pipeline facility and:
(1)iithe operator of the pipeline facility determines that the construction will not increase a risk to the public or increase a risk of a break, leak, rupture, or other damage to the pipeline facility;
Friday, May 30, 2003 SENATE JOURNAL 3679
(2)iiif the operator of the pipeline facility determines that the construction will increase risk to the public or the pipeline facility, the constructor pays the cost of the additional fortifications, barriers, conduits, or other changes or improvements necessary to protect the public or pipeline facility from that risk before proceeding with the construction; or
(3)iithe building, repair, replacement, or maintenance is conducted under an existing written agreement.
Sec.i756.104.iiNO NOTICE REQUIRED IN EVENT OF NATURAL DISASTER. A person may build, repair, replace, or maintain a construction on, across, over, or under the easement or right-of-way for a pipeline facility without notice if the building, repair, replacement, or maintenance is required to be done promptly by a regulated utility company because of the effects of a natural disaster.
SECTIONi____.iiThe change in law made by Subchapter G, Chapter 756, Health and Safety Code, as added by this article, applies only to an activity described by Section 756.103, Health and Safety Code, as added by this article, that is initiated on or after the effective date of this Act.
Floor Amendment No. 40
Amend CSSB 1952 by inserting a new appropriately numbered SECTION of the bill to read as follows and by renumbering subsequent SECTIONS accordingly:
SECTION ____. Subchapter C, Chapter 105, Utilities Code, is amended by adding Section 105.052 to read as follows:
Sec. 105.052. REIMBURSEMENT OF REASONABLE COSTS. (a) To the extent the regulatory authority determines the costs are reasonable, a gas utility shall reimburse the costs of an affected person or a state agency or municipality that is a party to a proceeding that results from a complaint filed against the utility under Section 105.051 if the affected person or party is wholly or partially successful in prosecuting the complaint before a regulatory authority or a court.
(b) Costs for which an affected person or a state agency or municipality may receive reimbursement under this section include any reasonable expenses related to the investigation, preparation, and prosecution of the complaint, including the reasonable costs of consultants, accountants, auditors, attorneys, and engineers.
(c) For purposes of this section, an affected person or a state agency or municipality may recover reasonable costs not yet paid because payment has been deferred pending a determination of reasonableness by the regulatory authority.
(d) Notwithstanding any other provision of this subtitle, a gas utility may not recover any amounts paid as reimbursement under this section as or through a charge to the utility's customers.
Floor Amendment No. 41
Amend CSSB 1952 (House committee printing) in PART 8 of the bill by adding the following appropriately numbered ARTICLE to PART 8 of the bill and renumbering subsequent ARTICLES in PART 8 accordingly:
3680 78th Legislature — Regular Session 82nd Day
ARTICLEi____.iiAPPLICATION OF AIR QUALITY
PERMIT REQUIREMENTS
SECTIONi____.ii(a) The siting, location, and operation of a facility, as defined by Section 382.003, Health and Safety Code, for which an application for a permit to construct the facility is pending with the Texas Commission on Environmental Quality on the effective date of this article are governed by Chapter 382, Health and Safety Code, as that chapter existed on the date the application was filed.
(b)iiThis section prevails over any conflicting Act of the 78th Legislature, Regular Session, 2003, regardless of the relative dates of enactment.
Floor Amendment No. 42
Amend CSSB 1952 (House committee report) by adding an appropriately numbered part to the bill as follows and renumbering the parts of the bill appropriately:
PART ____. NURSING
ARTICLE ____. SINGLE NURSING BOARD
SECTIONi____.iiThe heading to Chapter 301, Occupations Code, is amended to read as follows:
CHAPTER 301. [REGISTERED] NURSES
SECTIONi____.iiSection 301.002, Occupations Code, is amended by adding Subdivisions (3), (4), and (5) to read as follows:
(3)ii"Nurse" means a person required to be licensed under this chapter to engage in professional or vocational nursing.
(4)ii"Nursing" means professional or vocational nursing.
(5)ii"Vocational nursing" means nursing, other than professional nursing, that generally requires experience and education in biological, physical, and social sciences sufficient to qualify as a licensed vocational nurse.
SECTIONi____.iiSection 301.003, Occupations Code, is amended to read as follows:
Sec.i301.003.iiAPPLICATION OF SUNSET ACT. The Board of Nurse
Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless
continued in existence as provided by that chapter, the board is abolished
Septemberi1, 2007 [2005].
SECTIONi____.iiSection 301.004(a), Occupations Code, is amended to read as follows:
(a)iiThis chapter does not apply to:
(1)iigratuitous nursing care of the sick that is provided by a friend;
(2)ii[nursing care by a licensed vocational nurse licensed under Chapter 302;
[(3)]iinursing care provided during a disaster under the state emergency
management plan adopted under Section 418.042, Government Code, if the person
providing the care does not hold the person out as a [registered or professional] nurse
unless the person is licensed in another state;
(3)i[(4)]iinursing care in which treatment is solely by prayer or spiritual
means;
(4)i[(5)]iian act performed by a person under the delegated authority [control
or supervision or at the instruction] of a person licensed by the Texas State Board of
Medical Examiners;
Friday, May 30, 2003 SENATE JOURNAL 3681
(5)i[(6)]iian act performed by a person licensed by another state agency if
the act is authorized by the statute under which the person is licensed;
(6)i[(7)]iithe practice of nursing that is incidental to a program of study by a
student enrolled in a board-approved [board-accredited] nursing education program
leading to an initial license as a [professional] nurse; or
(7)i[(8)]iithe practice of nursing by a person [registered nurse] licensed in
another state who is in this state on a nonroutine basis for a period not to exceed 72
hours to:
(A)iiprovide care to a patient being transported into, out of, or through this state;
(B)iiprovide [professional] nursing consulting services; or
(C)iiattend or present a continuing nursing education program.
SECTIONi____.iiSubchapter A, Chapter 301, Occupations Code, is amended by adding Section 301.005 to read as follows:
Sec.i301.005.iiOCCUPATION TAX AND FEE EXEMPTION. A vocational nurse organization that operates a nonprofit registry to enroll members to provide nursing to the public is not liable for the payment of an occupation tax or license fee unless the law imposing the tax or fee specifically imposes the tax or fee on vocational nurse organizations that operate nonprofit registries.
SECTIONi____.iiSection 301.051(a), Occupations Code, is amended to read as follows:
(a)iiThe Board of Nurse Examiners consists of 13 [nine] members appointed by
the governor with the advice and consent of the senate as follows:
(1)iisix [registered] nurse members, including:
(A)iione advanced practice nurse;
(B)iitwo registered nurses who are not advanced practice nurses or members of a nurse faculty; and
(C)iithree vocational nurses who are not members of a nurse faculty;
(2)iithree members who are nurse faculty members of schools of nursing:
(A)iione of whom is a nurse faculty member of a school of nursing
offering a [the] baccalaureate degree program in preparing registered nurses;
(B)iione of whom is a nurse faculty member of a school of nursing
offering an [the] associate degree program in preparing registered nurses; and
(C)iione of whom is a nurse faculty member of a [graduate] school of
nursing at an institution of higher education preparing vocational [advanced practice]
nurses; and
(3)iifour [(2)iithree] members who represent the public.
SECTIONi____.iiSection 301.052(a), Occupations Code, is amended to read as follows:
(a)iiA person is not eligible for appointment as a registered nurse or vocational
nurse member of the board unless the person has practiced [engaged in the] nursing in
the role for which the member was appointed [profession] for at least three of the five
years preceding the date of appointment.
SECTIONi____.iiSection 301.054, Occupations Code, is amended to read as follows:
3682 78th Legislature — Regular Session 82nd Day
Sec.i301.054.iiTERMS. Members of the board serve staggered six-year terms,
with the terms of as near to one-third of the members as possible [one member who is
a practicing registered nurse, one member who is a registered nurse engaged in nurse
education, and one member who is a representative of the public] expiring on
Januaryi31 of each odd-numbered year.
SECTIONi____.iiSection 301.151, Occupations Code, is amended to read as follows:
Sec.i301.151.iiGENERAL RULEMAKING AUTHORITY. The board may adopt and enforce rules consistent with this chapter and necessary to:
(1)iiperform its duties and conduct proceedings before the board;
(2)iiregulate the practice of professional nursing and vocational nursing;
(3)iiestablish standards of professional conduct for license holders under this chapter; and
(4)iidetermine whether an act constitutes the practice of professional nursing or vocational nursing.
SECTIONi____.iiSection 301.154(a), Occupations Code, is amended to read as follows:
(a)iiThe board may recommend to the Texas State Board of Medical Examiners the adoption of rules relating to the delegation by physicians of medical acts to registered nurses and vocational nurses licensed by the board. In making a recommendation, the board may distinguish between nurses on the basis of special training and education.
SECTIONi____.iiThe heading to Section 301.157, Occupations Code, is amended to read as follows:
Sec.i301.157.iiPROGRAMS OF STUDY AND APPROVAL
[ACCREDITATION].
SECTIONi____.iiSections 301.157(b), (c), and (d), Occupations Code, are amended to read as follows:
(b)iiThe board shall:
(1)iiprescribe two programs of study to prepare vocational nurses as follows:
(A)iia program conducted by an educational unit in nursing within the structure of a school, including a college, university, or proprietary school; and
(B)iia program conducted by a hospital;
(2)iiprescribe and publish the minimum requirements and standards for a
course of study in each program that prepares registered nurses or vocational
[professional] nurses;
(3)i[(2)]iiprescribe other rules as necessary to conduct approved [accredited]
schools of nursing and educational programs for the preparation of registered nurses
or vocational [professional] nurses;
(4)iiapprove [(3)iiaccredit] schools of nursing and educational programs that
meet the board's requirements; and
(5)i[(4)]iideny or withdraw approval [accreditation] from a school of nursing
or educational program that fails to meet the prescribed course of study or other
standard.
Friday, May 30, 2003 SENATE JOURNAL 3683
(c)iiA program approved to prepare registered nurses [The board] may not be
[require a program that is composed of] less than two academic years or more than
four calendar years.
(d)iiA person may not be certified as a graduate of any school of nursing or
educational program unless the person has completed the requirements of the
prescribed course of study, including clinical practice, of an approved [accredited]
school of nursing or educational program.
SECTIONi____.iiSection 301.158, Occupations Code, is amended to read as follows:
Sec.i301.158.iiDISSEMINATION OF INFORMATION. The board shall
disseminate, at least twice a year and at other times the board determines necessary,
information that is of significant interest to [professional] nurses and employers of
[professional] nurses in this state, including summaries of final disciplinary action
taken against [registered] nurses by the board since its last dissemination of
information.
SECTIONi____.iiSection 301.251, Occupations Code, is amended to read as follows:
Sec.i301.251.iiLICENSE REQUIRED. (a) A person may not practice or offer to practice professional nursing or vocational nursing in this state unless the person is licensed as provided by this chapter.
(b)iiUnless the person holds a license under this chapter, a person may not use, in connection with the person's name:
(1)iithe title "Registered Nurse," "Professional Nurse," "Licensed Vocational Nurse," "Vocational Nurse," "Licensed Practical Nurse," "Practical Nurse," or "Graduate Nurse";
(2)iithe abbreviation "R.N.," "L.V.N.," "V.N.," "L.P.N.," or "P.N."; or
(3)iiany other designation tending to imply that the person is a licensed registered nurse or vocational nurse.
(c)iiThis section does not apply to a person entitled to practice professional nursing or vocational nursing in this state under Chapter 304, as added by Chapter 1420, Acts of the 77th Legislature, Regular Session, 2001.
SECTIONi____.iiSection 301.252, Occupations Code, is amended to read as follows:
Sec.i301.252.iiLICENSE APPLICATION. (a) Each applicant for a registered
nurse license or a vocational nurse license must submit to the board a sworn
application that demonstrates the applicant's qualifications under this chapter,
accompanied by evidence that the applicant [has]:
(1)iihas good professional character; and
(2)iihas successfully completed an approved [accredited] program of
professional or vocational nursing education.
(b)iiThe board may waive the requirement of Subsection (a)(2) for a vocational nurse applicant if the applicant provides satisfactory sworn evidence that the applicant has completed an acceptable level of education in:
(1)iia professional nursing school approved by the board; or
(2)iia school of professional nurse education located in another state or a foreign country.
3684 78th Legislature — Regular Session 82nd Day
(c)iiThe board by rule shall determine acceptable levels of education under Subsection (b).
SECTIONi____.iiSection 301.253(c), Occupations Code, is amended to read as follows:
(c)iiThe examination shall be designed to determine the fitness of the applicant to practice professional nursing or vocational nursing.
SECTIONi____.iiSection 301.256, Occupations Code, is amended to read as follows:
Sec.i301.256.iiISSUANCE OF LICENSE. If the results of an examination taken under Section 301.253 or 301.255 satisfy the criteria established by the board under that section, the board shall issue to the applicant a license to practice professional nursing or vocational nursing in this state. The license must be signed by the board's presiding officer and the executive director and attested by the board's seal.
SECTIONi____.iiSections 301.257(a) and (g), Occupations Code, are amended to read as follows:
(a)iiA person may petition the board for a declaratory order as to the person's eligibility for a license under this chapter if the person:
(1)iiis enrolled or planning to enroll in an educational program that prepares a person for an initial license as a registered nurse or vocational nurse; and
(2)iihas reason to believe that the person is ineligible for the license.
(g)iiThe board may require an individual accepted for enrollment or enrolled in an educational program preparing a student for initial licensure as a registered nurse or vocational nurse to submit information to the board to permit the board to determine whether the person is aware of the conditions that may disqualify the person from licensure as a registered nurse or vocational nurse on graduation and of the person's right to petition the board for a declaratory order under this section. Instead of requiring the person to submit the information, the board may require the educational program to collect and submit the information on each person accepted for enrollment or enrolled in the program.
SECTIONi____.iiSections 301.258(a), (d), and (f), Occupations Code, are amended to read as follows:
(a)iiPending the results of a licensing examination, the board may issue to an applicant who is a graduate of an approved educational program a permit to practice professional nursing under the direct supervision of a registered nurse or to practice vocational nursing under the direct supervision of a registered nurse or vocational nurse.
(d)iiThe board may issue a temporary permit to practice professional nursing or vocational nursing for the limited purpose of allowing a nurse to satisfy a requirement imposed by the board necessary for:
(1)iirenewal of an expired license;
(2)iireactivation of an inactive license; or
(3)iireissuance of a suspended, revoked, or surrendered license.
(f)iiA person who holds a temporary permit issued under this section is considered to be a licensed registered nurse or vocational nurse for all purposes except to the extent of any stipulation or limitation on practice imposed by the board as a condition of issuing the permit.
Friday, May 30, 2003 SENATE JOURNAL 3685
SECTIONi____.iiSection 301.259, Occupations Code, is amended to read as follows:
Sec.i301.259.iiRECIPROCAL LICENSE BY ENDORSEMENT FOR CERTAIN FOREIGN APPLICANTS. On payment of a fee established by the board, the board may issue a license to practice as a registered nurse or vocational nurse in this state by endorsement without examination to an applicant who holds a registration certificate as a registered nurse or vocational nurse, as applicable, issued by a territory or possession of the United States or a foreign country if the board determines that the issuing agency of the territory or possession of the United States or foreign country required in its examination the same general degree of fitness required by this state.
SECTIONi____.iiSection 301.260(a), Occupations Code, is amended to read as follows:
(a)iiAn applicant for a license under this chapter who is licensed as a registered nurse or vocational nurse by another state may qualify for a temporary license by endorsement to practice as a registered nurse or vocational nurse, as applicable, by submitting to the board:
(1)iian endorsement fee as determined by the board and a completed sworn application in the form prescribed by the board;
(2)iievidence that the person possessed, at the time of initial licensing as a
[registered] nurse, the other qualifications necessary at that time to have been eligible
for licensing in this state; and
(3)iiproof of initial licensing by examination and proof that the license and any other license issued to the applicant by another state have not been suspended, revoked, canceled, surrendered, or otherwise restricted.
SECTIONi____.iiSections 301.261(a), (c), and (e), Occupations Code, are amended to read as follows:
(a)iiThe board may place on inactive status the license of a person under this chapter who is not actively engaged in the practice of professional nursing or vocational nursing if the person submits a written request to the board in the form and manner determined by the board. The inactive status begins on the expiration date of the person's license.
(c)iiA person whose license is on inactive status may not perform any professional nursing or vocational nursing service or work.
(e)iiThe board by rule shall permit a person whose license is on inactive status
and who is 65 years or older to use, as applicable, the title "Registered Nurse Retired,"
[or] "R.N. Retired," "Licensed Vocational Nurse Retired," "Vocational Nurse Retired,"
"L.V.N. Retired," or "V.N. Retired."
SECTIONi____.iiSection 301.301(f), Occupations Code, is amended to read as follows:
(f)iiA registered nurse who practices professional nursing or a vocational nurse who practices vocational nursing after the expiration of the nurse's license is an illegal practitioner whose license may be revoked or suspended.
SECTIONi____.iiSection 301.302(a), Occupations Code, is amended to read as follows:
3686 78th Legislature — Regular Session 82nd Day
(a)iiThe board may renew without examination the expired license of a person who was licensed to practice professional nursing or vocational nursing in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application.
SECTIONi____.iiSection 301.304(a), Occupations Code, is amended to read as follows:
(a)iiAs part of any continuing education requirements under Section 301.303, a
registered nurse [license holder] shall participate in not less than two hours of
continuing education relating to hepatitis C. This subsection applies only to a
registered nurse [license holder] who renews a license on or after June 1, 2002.
SECTIONi____.iiSubchapter G, Chapter 301, Occupations Code, is amended by adding Section 301.305 to read as follows:
Sec.i301.305.iiBIOTERRORISM RESPONSE COMPONENT IN CONTINUING EDUCATION. (a) As part of continuing education requirements under Section 301.303, a license holder shall participate during each two-year licensing period in at least two hours of continuing education relating to preparing for, reporting medical events resulting from, and responding to the consequences of an incident of bioterrorism.
(b)iiThe continuing education required under Subsection (a) must be part of a program approved under Section 301.303(c).
(c)iiA license holder who does not comply with the continuing education required under Subsection (a) is subject only to one or both of the following sanctions:
(1)iicompletion of the instruction in a period set by the board of 30 days or less; or
(2)iian administrative penalty imposed under Subchapter K.
(d)iiA license holder who fails to comply with a sanction imposed under Subsection (c) is subject to any sanction imposed under Section 301.453 or Subchapter K.
(e)iiThe board, in consultation with the Texas Department of Health, shall adopt rules establishing the content of the continuing education required under Subsection (a). The board may adopt other rules to implement this section, including rules under Section 301.303(c) for the approval of education programs and providers.
(f)iiThe board may divide the content of the continuing education required under Subsection (a) into one-hour segments and may require that those segments be taken in a certain sequence.
(g)iiThis section expires September 1, 2007.
SECTIONi____.iiSection 301.351, Occupations Code, is amended to read as follows:
Sec.i301.351.iiDESIGNATIONS. (a) A person who holds a license as a registered nurse under this chapter:
(1)iiis referred to as a registered nurse; and
(2)iimay use the abbreviation "R.N."
(b)iiA person who holds a license as a vocational nurse under this chapter:
(1)iiis referred to as a licensed vocational nurse or vocational nurse; and
(2)iimay use the abbreviation "L.V.N." or "V.N."
Friday, May 30, 2003 SENATE JOURNAL 3687
(c)iiWhile on duty providing direct care to a patient, each licensed registered nurse shall wear an insignia identifying the nurse as a registered nurse and each licensed vocational nurse shall wear an insignia identifying the nurse as a vocational nurse.
SECTIONi____.iiSections 301.352(a) and (c), Occupations Code, are amended to read as follows:
(a)iiA person may not suspend, terminate, or otherwise discipline or discriminate
against a [registered] nurse who refuses to engage in an act or omission relating to
patient care that would constitute grounds for reporting the nurse to the board under
Subchapter I if the nurse notifies the person at the time of the refusal that the reason
for refusing is that the act or omission:
(1)iiconstitutes grounds for reporting the nurse to the board; or
(2)iiis a violation of this chapter or a rule of the board.
(c)iiA [registered] nurse's rights under this section may not be nullified by a
contract.
SECTIONi____.iiSection 301.401, Occupations Code, is amended to read as follows:
Sec.i301.401.iiGROUNDS FOR REPORTING [REGISTERED] NURSE. The
following are grounds for reporting a [registered] nurse under Section 301.402,
301.403, 301.405, or 301.407:
(1)iiunnecessary or likely exposure by the [registered] nurse of a patient or
other person to a risk of harm;
(2)iiunprofessional conduct by the [registered] nurse;
(3)iifailure by the [registered] nurse to adequately care for a patient;
(4)iifailure by the [registered] nurse to conform to the minimum standards of
acceptable professional nursing practice; or
(5)iiimpairment or likely impairment of the [registered] nurse's practice by
chemical dependency.
SECTIONi____.iiSection 301.402, Occupations Code, is amended to read as follows:
Sec.i301.402.iiDUTY OF [REGISTERED] NURSE TO REPORT. (a) In this
section:
(1)ii"Nursing [Professional nursing] educational program" means a
board-approved [board-accredited] educational program leading to initial licensure as
a registered nurse or vocational nurse.
(2)ii"Nursing [Professional nursing] student" means an individual who is
enrolled in a professional nursing or vocational nursing educational program.
(b)iiA [registered] nurse shall report to the board in the manner prescribed under
Subsection (d) if the nurse has reasonable cause to suspect that:
(1)iianother [registered] nurse is subject to a ground for reporting under
Section 301.401; or
(2)iithe ability of a [professional] nursing student to perform the services of
the nursing profession would be, or would reasonably be expected to be, impaired by
chemical dependency.
3688 78th Legislature — Regular Session 82nd Day
(c)iiIn a written, signed report to the appropriate licensing board, a [registered]
nurse may report a licensed health care practitioner, agency, or facility that the nurse
has reasonable cause to believe has exposed a patient to substantial risk of harm as a
result of failing to provide patient care that conforms to the minimum standards of
acceptable and prevailing nursing [professional] practice.
(d)iiA report by a [registered] nurse under Subsection (b) must:
(1)iibe written and signed; and
(2)iiinclude the identity of the [registered] nurse or student and any
additional information required by the board.
(e)iiA [registered] nurse may make a report required under Subsection (b)(2) to
the [professional] nursing educational program in which the student is enrolled instead
of reporting to the board.
SECTIONi____.iiSection 301.403, Occupations Code, is amended to read as follows:
Sec.i301.403.iiDUTY OF PEER REVIEW COMMITTEE TO REPORT. A
[professional] nursing peer review committee operating under Chapter 303 that has a
ground for reporting a [registered] nurse under Section 301.401 shall file with the
board a written, signed report that includes:
(1)iithe identity of the nurse;
(2)iia description of any corrective action taken against the nurse;
(3)iia statement whether the [professional] nursing peer review committee
recommends that the board take formal disciplinary action against the nurse; and
(4)iiany additional information the board requires.
SECTIONi____.iiSection 301.404, Occupations Code, is amended to read as follows:
Sec.i301.404.iiDUTY OF NURSING EDUCATIONAL PROGRAM TO
REPORT. (a) In this section, "[professional] nursing educational program" and
"[professional] nursing student" have the meanings assigned by Section 301.402(a).
(b)iiA [professional] nursing educational program that has reasonable cause to
suspect that the ability of a [professional] nursing student to perform the services of
the nursing profession would be, or would reasonably be expected to be, impaired by
chemical dependency shall file with the board a written, signed report that includes
the identity of the student and any additional information the board requires.
SECTIONi____.iiSection 301.405, Occupations Code, is amended to read as follows:
Sec.i301.405.iiDUTY OF PERSON EMPLOYING [REGISTERED] NURSE
TO REPORT. (a) This section applies only to a person who employs, hires, or
contracts for the services of a [registered] nurse, including:
(1)iia health care facility, including a hospital, health science center, nursing home, or home health agency;
(2)iia state agency;
(3)iia political subdivision;
(4)iia school of [professional] nursing; and
(5)iia temporary nursing service.
Friday, May 30, 2003 SENATE JOURNAL 3689
(b)iiA person that terminates, suspends for more than seven days, or takes other
substantive disciplinary action, as defined by the board, against a [registered] nurse
because a ground under Section 301.401 exists to report the nurse shall report in
writing to the board the identity of the nurse and any additional information the board
requires.
(c)iiExcept as provided by Subsection (g), each [Each] person subject to this
section that regularly employs, hires, or otherwise contracts for the services of 10 or
more [registered] nurses shall develop a written plan for identifying and reporting a
[registered] nurse in its service against whom a ground under Section 301.401 exists.
The plan must include an appropriate process for the review by a [professional]
nursing peer review committee established and operated under Chapter 303 of any
incident reportable under this section and for the affected nurse to submit rebuttal
information to that committee. Review by the committee is only advisory.
(d)iiThe review by the peer review committee must include a determination as to
whether a ground under Section 301.401 exists to report the [registered] nurse
undergoing review. The peer review committee's determination must be included in
the report made to the board under Subsection (b).
(e)iiThe requirement that a report to the board be reviewed by a [professional]
nursing peer review committee:
(1)iiapplies only to a required report; and
(2)iidoes not subject a person's administrative decision to discipline a
[registered] nurse to the peer review process or prevent a person from taking
disciplinary action before review by the peer review committee is conducted.
(f)iiThe board shall enter into memoranda of understanding with each state
agency that licenses, registers, or certifies a health care facility or agency or surveys
that facility or agency with respect to [professional] nursing care as to how that state
agency can promote compliance with Subsection (c).
(g)iiA person is not required to develop a written plan under Subsection (c) for peer review of:
(1)iia registered nurse, unless the person regularly employs, hires, or otherwise contracts for the services of at least five registered nurses; or
(2)iia vocational nurse, unless the person regularly employs, hires, or otherwise contracts for the services of at least five vocational nurses.
SECTIONi____.iiSection 301.406, Occupations Code, is amended to read as follows:
Sec.i301.406.iiDUTY OF CERTAIN PROFESSIONAL ASSOCIATIONS AND
ORGANIZATIONS TO REPORT. A professional association of [registered] nurses or
an organization that conducts a certification or accreditation program for [registered]
nurses and that expels, decertifies, or takes any other substantive disciplinary action,
as defined by the board, against a [registered] nurse as a result of the nurse's failure to
conform to the minimum standards of acceptable [professional] nursing practice shall
report in writing to the board the identity of the nurse and any additional information
the board requires.
SECTIONi____.iiSection 301.407, Occupations Code, is amended to read as follows:
3690 78th Legislature — Regular Session 82nd Day
Sec.i301.407.iiDUTY OF STATE AGENCY TO REPORT. (a) This section applies only to a state agency that:
(1)iilicenses, registers, or certifies:
(A)iia hospital;
(B)iia nursing home;
(C)iia health science center;
(D)iia home health agency; or
(E)iianother health care facility or agency; or
(2)iisurveys a facility or agency listed in Subdivision (1) regarding the
quality of [professional] nursing care provided by the facility or agency.
(b)iiUnless expressly prohibited by state or federal law, a state agency that has
reason to believe a ground for reporting a [registered] nurse exists under Section
301.401 shall report in writing to the board the identity of that [registered] nurse.
SECTIONi____.iiSection 301.408, Occupations Code, is amended to read as follows:
Sec.i301.408.iiDUTY OF [PROFESSIONAL] LIABILITY INSURER TO
REPORT. (a) Each insurer that provides to a [registered] nurse [professional] liability
insurance that covers claims arising from providing or failing to provide [professional]
nursing care shall submit to the board the report or data required by this section at the
time prescribed.
(b)iiThe report or data must be provided for:
(1)iia complaint filed in court against a [registered] nurse that seeks damages
related to the nurse's conduct in providing or failing to provide [professional] nursing
care; and
(2)iia settlement of a claim or lawsuit made on behalf of a nurse.
(c)iiNot later than the 30th day after the date the insurer receives a complaint subject to Subsection (b), the insurer shall provide to the board:
(1)iithe name of the [registered] nurse against whom the claim is filed;
(2)iithe policy number;
(3)iithe policy limits;
(4)iia copy of the petition;
(5)iia copy of the answer; and
(6)iiother relevant information known by the insurer, as required by the board.
(d)iiNot later than the 30th day after the date of a judgment, dismissal, or
settlement of a suit involving an insured [registered] nurse or settlement of a claim on
behalf of the nurse without the filing of a lawsuit, the insurer shall provide to the
board information regarding the date of the judgment, dismissal, or settlement and, if
appropriate:
(1)iiwhether an appeal has been taken from the judgment and by which party;
(2)iithe amount of the settlement or judgment against the nurse; and
(3)iiother relevant information known by the insurer, as required by the board.
Friday, May 30, 2003 SENATE JOURNAL 3691
(e)iiA [registered] nurse shall report the information required to be reported
under this section if the nurse is named as a defendant in a claim arising from
providing or failing to provide [professional] nursing care and the nurse:
(1)iidoes not carry or is not covered by [professional] liability insurance; or
(2)iiis insured by a nonadmitted carrier.
SECTIONi____.iiSection 301.409(a), Occupations Code, is amended to read as follows:
(a)iiThe attorney representing the state shall cause the clerk of the court of record in which the conviction, adjudication, or finding is entered to prepare and forward to the board a certified true and correct abstract of the court record of the case not later than the 30th day after the date:
(1)iia person known to be a [registered] nurse who is licensed, otherwise
lawfully practicing in this state, or applying to be licensed to practice is convicted of:
(A)iia felony;
(B)iia misdemeanor involving moral turpitude;
(C)iia violation of a state or federal narcotics or controlled substance law; or
(D)iian offense involving fraud or abuse under the Medicare or Medicaid program; or
(2)iia court finds that a [registered] nurse is mentally ill or mentally
incompetent.
SECTIONi____.iiSection 301.410, Occupations Code, is amended to read as follows:
Sec.i301.410.iiREPORT REGARDING IMPAIRMENT BY CHEMICAL
DEPENDENCY OR MENTAL ILLNESS. A person who is required to report a
[registered] nurse under this subchapter because the nurse is impaired or suspected of
being impaired by chemical dependency or mental illness may report to a peer
assistance program approved by the board under Chapter 467, Health and Safety
Code, instead of reporting to the board or requesting review by a [professional]
nursing peer review committee.
SECTIONi____.iiSection 301.414, Occupations Code, is amended to read as follows:
Sec.i301.414.iiNOTICE AND REVIEW OF REPORT. (a) The board shall
notify each [registered] nurse who is reported to the board under Section 301.402,
301.403, 301.405, 301.406, 301.407, 301.408, or 301.409 of the filing of the report
unless the notification would jeopardize an active investigation.
(b)iiThe [registered] nurse or the nurse's authorized representative is entitled on
request to review any report submitted to the board under a section specified under
Subsection (a) unless doing so would jeopardize an active investigation. The board
may not reveal the identity of the person making or signing the report.
SECTIONi____.iiSection 301.415(a), Occupations Code, is amended to read as follows:
(a)iiA [registered] nurse who is entitled to receive notice under Section 301.414
or the authorized representative of the nurse may file with the board a statement of
reasonable length containing the nurse's rebuttal of any information in the report to
the board.
3692 78th Legislature — Regular Session 82nd Day
SECTIONi____.iiSection 301.416(b), Occupations Code, is amended to read as follows:
(b)iiIf the board determines that the reported conduct does not indicate that the
continued practice of [professional] nursing by the nurse poses a risk of harm to a
client or other person, the board, with the written consent of the nurse and the person
making the report, may elect not to proceed with an investigation or to file formal
charges. The board shall:
(1)iimaintain a record of the report; and
(2)iiinvestigate the report if it receives two or more reports involving separate incidents regarding the nurse in any five-year period.
SECTIONi____.iiSections 301.418(b) and (c), Occupations Code, are amended to read as follows:
(b)iiA report or information submitted as required or authorized by this
subchapter arising out of the provision or failure to provide [professional] nursing
services may not be made available in a liability action for:
(1)iidiscovery;
(2)iicourt subpoena; or
(3)iiintroduction into evidence.
(c)iiA person is not prevented from taking disciplinary action against a
[registered] nurse by:
(1)iithe filing of a report under this subchapter with the board;
(2)iian investigation by the board; or
(3)iithe disposition of a matter by the board.
SECTIONi____.iiSections 301.419(a), (c), and (d), Occupations Code, are amended to read as follows:
(a)iiIn this section, "minor incident" means conduct that does not indicate that
the continuing practice of [professional] nursing by an affected nurse poses a risk of
harm to a client or other person.
(c)iiIf the board determines that a report submitted under this subchapter is
without merit, the board shall expunge the report from the [registered] nurse's file.
(d)iiThe board shall inform, in the manner the board determines appropriate,
[registered] nurses, facilities, agencies, and other persons of their duty to report under
this subchapter.
SECTIONi____.iiSection 301.451, Occupations Code, is amended to read as follows:
Sec.i301.451.iiCERTAIN PROHIBITED PRACTICES. A person may not:
(1)iisell, fraudulently obtain, or fraudulently furnish a nursing diploma, license, renewal license, or record;
(2)iiassist another person in selling, fraudulently obtaining, or fraudulently furnishing a nursing diploma, license, renewal license, or record;
(3)iipractice [professional] nursing under a diploma, license, or record that
was:
(A)iiobtained unlawfully or fraudulently; or
(B)iisigned or issued unlawfully or under false representation; or
(4)iipractice [professional] nursing in a period in which the person's license
is suspended or revoked.
Friday, May 30, 2003 SENATE JOURNAL 3693
SECTIONi____.iiSections 301.452(a) and (b), Occupations Code, are amended to read as follows:
(a)iiIn this section, "intemperate use" includes practicing [professional] nursing
or being on duty or on call while under the influence of alcohol or drugs.
(b)iiA person is subject to denial of a license or to disciplinary action under this subchapter for:
(1)iia violation of this chapter, a rule or regulation not inconsistent with this chapter, or an order issued under this chapter;
(2)iifraud or deceit in procuring or attempting to procure a license to practice professional nursing or vocational nursing;
(3)iia conviction for a felony or for a misdemeanor involving moral turpitude;
(4)iiconduct that results in the revocation of probation imposed because of conviction for a felony or for a misdemeanor involving moral turpitude;
(5)iiuse of a nursing license, diploma, or permit, or the transcript of such a document, that has been fraudulently purchased, issued, counterfeited, or materially altered;
(6)iiimpersonating or acting as a proxy for another person in the licensing examination required under Section 301.253 or 301.255;
(7)iidirectly or indirectly aiding or abetting an unlicensed person in
connection with the unauthorized practice of [professional] nursing;
(8)iirevocation, suspension, or denial of, or any other action relating to, the person's license or privilege to practice nursing in another jurisdiction;
(9)iiintemperate use of alcohol or drugs that the board determines endangers or could endanger a patient;
(10)iiunprofessional or dishonorable conduct that, in the board's opinion, is likely to deceive, defraud, or injure a patient or the public;
(11)iiadjudication of mental incompetency;
(12)iilack of fitness to practice because of a mental or physical health condition that could result in injury to a patient or the public; or
(13)iifailure to care adequately for a patient or to conform to the minimum
standards of acceptable [professional] nursing practice in a manner that, in the board's
opinion, exposes a patient or other person unnecessarily to risk of harm.
SECTIONi____.iiSections 301.453(a), (b), and (c), Occupations Code, are amended to read as follows:
(a)iiIf the board determines that a person has committed an act listed in Section 301.452(b), the board shall enter an order imposing one or more of the following:
(1)iidenial of the person's application for a license, license renewal, or temporary permit;
(2)iiissuance of a written warning;
(3)iiadministration of a public reprimand;
(4)iilimitation or restriction of the person's license, including:
(A)iilimiting to or excluding from the person's practice one or more
specified activities of [professional] nursing; or
(B)iistipulating periodic board review;
(5)iisuspension of the person's license for a period not to exceed five years;
3694 78th Legislature — Regular Session 82nd Day
(6)iirevocation of the person's license; or
(7)iiassessment of a fine.
(b)iiIn addition to or instead of an action under Subsection (a), the board, by order, may require the person to:
(1)iisubmit to care, counseling, or treatment by a health provider designated by the board as a condition for the issuance or renewal of a license;
(2)iiparticipate in a program of education or counseling prescribed by the board;
(3)iipractice for a specified period under the direction of a registered nurse or vocational nurse designated by the board; or
(4)iiperform public service the board considers appropriate.
(c)iiThe board may probate any penalty imposed on a [registered] nurse and may
accept the voluntary surrender of a license. The board may not reinstate a surrendered
license unless it determines that the person is competent to resume practice.
SECTIONi____.iiSection 301.455(a), Occupations Code, is amended to read as follows:
(a)iiThe license of a [registered] nurse shall be temporarily suspended on a
determination by a majority of the board or a three-member committee of board
members designated by the board that, from the evidence or information presented,
the continued practice of the [registered] nurse would constitute a continuing and
imminent threat to the public welfare.
SECTIONi____.iiSection 301.457, Occupations Code, is amended to read as follows:
Sec.i301.457.iiCOMPLAINT AND INVESTIGATION. (a) The board or any
person may initiate a proceeding under this subchapter by filing with the board a
complaint against a [registered] nurse. The complaint must be in writing and signed
by the complainant.
(b)iiExcept as otherwise provided by this section, the board or a person
authorized by the board shall conduct each investigation. Each complaint against a
[registered] nurse that requires a determination of [professional] nursing competency
shall be reviewed by a board member, consultant, or employee with a [professional]
nursing background the board considers sufficient.
(c)iiOn the filing of a complaint, the board:
(1)iimay conduct a preliminary investigation into the identity of the
[registered] nurse named or described in the complaint;
(2)iishall make a timely and appropriate preliminary investigation of the complaint; and
(3)iimay issue a warning or reprimand to the [registered] nurse.
(d)iiAfter any preliminary investigation to determine the identity of the subject of
the complaint, unless it would jeopardize an investigation, the board shall notify the
[registered] nurse that a complaint has been filed and the nature of the complaint. If
the investigation reveals probable cause to take further disciplinary action, the board
shall either attempt an informal disposition of the complaint or file a formal charge
against the [registered] nurse stating the provision of this chapter or board rule that is
alleged to have been violated and a brief description of each act or omission that
constitutes the violation.
Friday, May 30, 2003 SENATE JOURNAL 3695
(e)iiThe board shall conduct an investigation of the complaint to determine:
(1)iiwhether the [registered] nurse's continued practice of [professional]
nursing poses a risk of harm to clients or other persons; and
(2)iiwhether probable cause exists that a [registered] nurse committed an act
listed in Section 301.452(b) or that violates other law.
SECTIONi____.iiSections 301.458(a) and (c), Occupations Code, are amended to read as follows:
(a)iiUnless there is an agreed disposition of the complaint under Section
301.463, and if probable cause is found under Section 301.457(e)(2), the board or the
board's authorized representative shall initiate proceedings by filing formal charges
against the [registered] nurse.
(c)iiA copy of the formal charge shall be served on the [registered] nurse or the
nurse's counsel of record.
SECTIONi____.iiSection 301.459(b), Occupations Code, is amended to read as follows:
(b)iiIn any hearing under this section, a [registered] nurse is entitled to appear in
person or by counsel.
SECTIONi____.iiSection 301.462, Occupations Code, is amended to read as follows:
Sec.i301.462.iiVOLUNTARY SURRENDER OF LICENSE. The board may
revoke a [registered] nurse's license without formal charges, notice, or opportunity of
hearing if the nurse voluntarily surrenders the nurse's license to the board and
executes a sworn statement that the nurse does not desire to be licensed.
SECTIONi____.iiSection 301.463(b), Occupations Code, is amended to read as follows:
(b)iiAn agreed disposition of a complaint is considered to be a disciplinary order
for purposes of reporting under this chapter and an administrative hearing and
proceeding by a state or federal regulatory agency regarding the practice of
[professional] nursing.
SECTIONi____.iiSection 301.466, Occupations Code, is amended to read as follows:
Sec.i301.466.iiCONFIDENTIALITY. (a) A complaint and investigation
concerning a [registered] nurse under this subchapter and all information and material
compiled by the board in connection with the complaint and investigation are:
(1)iiconfidential and not subject to disclosure under Chapter 552, Government Code; and
(2)iinot subject to disclosure, discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or a board employee or agent involved in license holder discipline.
(b)iiNotwithstanding Subsection (a), information regarding a complaint and an investigation may be disclosed to:
(1)iia person involved with the board in a disciplinary action against the nurse;
(2)iia [professional] nursing licensing or disciplinary board in another
jurisdiction;
3696 78th Legislature — Regular Session 82nd Day
(3)iia peer assistance program approved by the board under Chapter 467, Health and Safety Code;
(4)iia law enforcement agency; or
(5)iia person engaged in bona fide research, if all information identifying a specific individual has been deleted.
(c)iiThe filing of formal charges against a [registered] nurse by the board, the
nature of those charges, disciplinary proceedings of the board, and final disciplinary
actions, including warnings and reprimands, by the board are not confidential and are
subject to disclosure in accordance with Chapter 552, Government Code.
SECTIONi____.iiSection 301.467(a), Occupations Code, is amended to read as follows:
(a)iiOn application, the board may reinstate a license to practice professional nursing or vocational nursing to a person whose license has been revoked, suspended, or surrendered.
SECTIONi____.iiSection 301.468(a), Occupations Code, is amended to read as follows:
(a)iiThe board may determine that an order denying a license application or suspending a license be probated. A person subject to a probation order shall conform to each condition the board sets as the terms of probation, including a condition:
(1)iilimiting the practice of the person to, or excluding, one or more specified activities of professional nursing or vocational nursing; or
(2)iirequiring the person to submit to supervision, care, counseling, or treatment by a practitioner designated by the board.
SECTIONi____.iiSection 301.469, Occupations Code, is amended to read as follows:
Sec.i301.469.iiNOTICE OF FINAL ACTION. If the board takes a final
disciplinary action, including a warning or reprimand, against a [registered] nurse
under this subchapter, the board shall immediately send a copy of the board's final
order to the nurse and to the last known employer of the nurse.
ARTICLE ____. CONFORMING AMENDMENTS FOR SINGLE
NURSING BOARD
SECTIONi____.iiSection 84.003(5), Civil Practice and Remedies Code, is amended to read as follows:
(5)ii"Volunteer health care provider" means an individual who voluntarily provides health care services without compensation or expectation of compensation and who is:
(A)iian individual who is licensed to practice medicine under Subtitle B, Title 3, Occupations Code;
(B)iia retired physician who is eligible to provide health care services, including a retired physician who is licensed but exempt from paying the required annual registration fee under Section 156.002, Occupations Code;
(C)iia physician assistant licensed under Chapter 204, Occupations Code, or a retired physician assistant who is eligible to provide health care services under the law of this state;
Friday, May 30, 2003 SENATE JOURNAL 3697
(D)iia registered nurse, including an advanced nurse practitioner, or vocational nurse, licensed under Chapter 301, Occupations Code, or a retired vocational nurse or registered nurse, including a retired advanced nurse practitioner, who is eligible to provide health care services under the law of this state;
(E)ii[a licensed vocational nurse licensed under Chapter 302,
Occupations Code, or a retired licensed vocational nurse who is eligible to provide
health care services under the law of this state;
[(F)]iia pharmacist licensed under Subtitle J, Title 3, Occupations Code,
or a retired pharmacist who is eligible to provide health care services under the law of
this state;
(F)i[(G)]iia podiatrist licensed under Chapter 202, Occupations Code, or
a retired podiatrist who is eligible to provide health care services under the law of this
state;
(G)i[(H)]iia dentist licensed under Subtitle D, Title 3, Occupations
Code, or a retired dentist who is eligible to provide health care services under the law
of this state;
(H)i[(I)]iia dental hygienist licensed under Subtitle D, Title 3,
Occupations Code, or a retired dental hygienist who is eligible to provide health care
services under the law of this state; or
(I)i[(J)]iian optometrist or therapeutic optometrist licensed under
Chapter 351, Occupations Code, or a retired optometrist or therapeutic optometrist
who is eligible to provide health care services under the law of this state.
SECTIONi____.iiSection 61.657(b), Education Code, is amended to read as follows:
(b)iiThe board shall appoint an eight-member advisory committee to advise the board concerning assistance provided under this subchapter to vocational nursing students. The advisory committee consists of:
(1)iia chair named by the board;
(2)iione representative named by the Licensed Vocational Nurses Association of Texas;
(3)iione representative named by the Texas Organization of Nurse Executives;
(4)iione representative named by the Board of [Vocational] Nurse
Examiners;
(5)iitwo representatives of vocational nursing educational programs named by the Texas Association of Vocational Nurse Educators;
(6)iione representative named by the Texas Health Care Association; and
(7)iione representative named by the Texas Association of Homes for the Aging.
SECTIONi____.iiSection 232.002, Family Code, is amended to read as follows:
Sec.i232.002.iiLICENSING AUTHORITIES SUBJECT TO CHAPTER. The following are licensing authorities subject to this chapter:
(1)iiDepartment of Agriculture;
(2)iiTexas Commission on Alcohol and Drug Abuse;
(3)iiTexas Alcoholic Beverage Commission;
(4)iiTexas Appraiser Licensing and Certification Board;
3698 78th Legislature — Regular Session 82nd Day
(5)iiTexas Board of Architectural Examiners;
(6)iiState Board of Barber Examiners;
(7)iiTexas Board of Chiropractic Examiners;
(8)iiComptroller of Public Accounts;
(9)iiTexas Cosmetology Commission;
(10)iiCourt Reporters Certification Board;
(11)iiState Board of Dental Examiners;
(12)iiTexas State Board of Examiners of Dietitians;
(13)iiTexas Funeral Service Commission;
(14)iiTexas Department of Health;
(15)iiTexas Department of Human Services;
(16)iiTexas Board of Professional Land Surveying;
(17)iiTexas Department of Licensing and Regulation;
(18)iiTexas State Board of Examiners of Marriage and Family Therapists;
(19)iiTexas State Board of Medical Examiners;
(20)iiMidwifery Board;
(21)iiTexas Commission on Environmental Quality [Natural Resource
Conservation Commission];
(22)iiBoard of Nurse Examiners;
(23)iiTexas Board of Occupational Therapy Examiners;
(24)iiTexas Optometry Board;
(25)iiParks and Wildlife Department;
(26)iiTexas State Board of Examiners of Perfusionists;
(27)iiTexas State Board of Pharmacy;
(28)iiTexas Board of Physical Therapy Examiners;
(29)iiTexas State Board of Plumbing Examiners;
(30)iiTexas State Board of Podiatric Medical Examiners;
(31)iiPolygraph Examiners Board;
(32)iiTexas Commission on Private Security;
(33)iiTexas State Board of Examiners of Professional Counselors;
(34)iiTexas Board of Professional Engineers;
(35)iiDepartment of Protective and Regulatory Services;
(36)iiTexas State Board of Examiners of Psychologists;
(37)iiTexas State Board of Public Accountancy;
(38)iiDepartment of Public Safety of the State of Texas;
(39)iiPublic Utility Commission of Texas;
(40)iiRailroad Commission of Texas;
(41)iiTexas Real Estate Commission;
(42)iiState Bar of Texas;
(43)iiTexas State Board of Social Worker Examiners;
(44)iiState Board of Examiners for Speech-Language Pathology and Audiology;
(45)iiTexas Structural Pest Control Board;
(46)iiBoard of Tax Professional Examiners;
(47)iiSecretary of State;
(48)iiSupreme Court of Texas;
Friday, May 30, 2003 SENATE JOURNAL 3699
(49)iiTexas Transportation Commission;
(50)iiState Board of Veterinary Medical Examiners;
(51)ii[Board of Vocational Nurse Examiners;
[(52)]iiTexas Ethics Commission;
(52)i[(53)]iiAdvisory Board of Athletic Trainers;
(53)i[(54)]iiState Committee of Examiners in the Fitting and Dispensing of
Hearing Instruments;
(54)i[(55)]iiTexas Board of Licensure for Professional Medical Physicists;
(55)i[(56)]iiTexas Department of Insurance;
(56)i[(57)]iiTexas Board of Orthotics and Prosthetics;
(57)i[(58)]iisavings and loan commissioner;
(58)i[(59)]iiTexas Juvenile Probation Commission; and
(59)i[(60)]iiTexas Lottery Commission under Chapter 466, Government
Code.
SECTIONi____.iiSection 487.101(3), Government Code, is amended to read as follows:
(3)ii"Postsecondary educational institution" means:
(A)iian institution of higher education, as defined by Section 61.003, Education Code;
(B)iia nonprofit, independent institution approved under Section 61.222, Education Code; or
(C)iia nonprofit, health-related school or program accredited by the
Southern Association of Colleges and Schools, the Liaison Committee on Medical
Education, the American Osteopathic Association, the Board of Nurse Examiners,
[the Board of Vocational Nurse Examiners,] or, in the case of allied health, an
accrediting body recognized by the United States Department of Education.
SECTIONi____.iiSection 487.151(2), Government Code, is amended to read as follows:
(2)ii"Postsecondary educational institution" means:
(A)iian institution of higher education, as defined by Section 61.003, Education Code;
(B)iia nonprofit, independent institution approved under Section 61.222, Education Code; or
(C)iia nonprofit, health-related school or program accredited by the
Southern Association of Colleges and Schools, the Liaison Committee on Medical
Education, the American Osteopathic Association, the Board of Nurse Examiners,
[the Board of Vocational Nurse Examiners,] or, in the case of allied health, an
accrediting body recognized by the United States Department of Education.
SECTIONi____.iiSection 531.051(f), Government Code, is amended to read as follows:
(f)iiSection 301.251(a), Occupations Code, does not apply to delivery of a service for which payment is provided under the voucher payment program developed under this section if:
(1)iithe person who delivers the service:
(A)iihas not been denied a license under Chapter 301 [or 302],
Occupations Code;
3700 78th Legislature — Regular Session 82nd Day
(B)iihas not been issued a license under Chapter 301, Occupations Code, that is revoked or suspended; and
(C)iiprovides a service listed under Subsection (h); and
(2)iithe consumer who receives the service:
(A)iihas a functional disability and the service would have been performed by the consumer, or the parent or guardian for the consumer, except for that disability; and
(B)iiif:
(i)iithe consumer is capable of training the person in the proper performance of the service, the consumer directs the person to deliver the service; or
(ii)iithe consumer is not capable of training the person in the proper performance of the service, the consumer's parent or guardian is capable of training the person in the proper performance of the service and directs the person to deliver the service.
SECTIONi____.iiSection 2054.252(a), Government Code, as added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
(a)iiThe following licensing authorities shall participate in the system established under Section 2054.253, as added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001:
(1)iiState Board of Barber Examiners;
(2)iiTexas Board of Chiropractic Examiners;
(3)iiTexas Cosmetology Commission;
(4)iiCourt Reporters Certification Board;
(5)iiState Board of Dental Examiners;
(6)iiTexas Funeral Service Commission;
(7)iiTexas Board of Professional Land Surveying;
(8)iiTexas State Board of Medical Examiners;
(9)iiBoard of Nurse Examiners;
(10)ii[Board of Vocational Nurse Examiners;
[(11)]iiTexas Optometry Board;
(11)i[(12)]iiTexas Structural Pest Control Board;
(12)i[(13)]iiTexas State Board of Pharmacy;
(13)i[(14)]iiExecutive Council of Physical Therapy and Occupational
Therapy Examiners;
(14)i[(15)]iiTexas State Board of Plumbing Examiners;
(15)i[(16)]iiTexas State Board of Podiatric Medical Examiners;
(16)i[(17)]iiBoard of Tax Professional Examiners;
(17)i[(18)]iiPolygraph Examiners Board;
(18)i[(19)]iiTexas State Board of Examiners of Psychologists;
(19)i[(20)]iiState Board of Veterinary Medical Examiners;
(20)i[(21)]iiTexas Real Estate Commission;
(21)i[(22)]iiTexas Appraiser Licensing and Certification Board; and
(22)i[(23)]iiTexas Department of Licensing and Regulation.
SECTIONi____.iiSection 81.010(c), Health and Safety Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3701
(c)iiThe council consists of one representative from each of the following agencies appointed by the executive director or commissioner of each agency:
(1)iithe department;
(2)iithe Texas Department of Mental Health and Mental Retardation;
(3)iithe Texas Department of Human Services;
(4)iithe Texas Commission on Alcohol and Drug Abuse;
(5)iithe Texas Rehabilitation Commission;
(6)iithe Texas Youth Commission;
(7)iithe Texas Department of Criminal Justice;
(8)iithe Texas Juvenile Probation Commission;
(9)iithe Texas Commission for the Blind;
(10)iithe Texas Commission for the Deaf and Hard of Hearing;
(11)iithe Department of Protective and Regulatory Services;
(12)iithe Texas Education Agency;
(13)iithe Texas State Board of Medical Examiners;
(14)iithe Board of Nurse Examiners;
(15)ii[the Board of Vocational Nurse Examiners;
[(16)]iithe State Board of Dental Examiners;
(16)i[(17)]iithe Health and Human Services Commission;
(17)i[(18)]iithe Texas Department on Aging; and
(18)i[(19)]iithe Texas Workforce Commission.
SECTIONi____.iiSection 142.022, Health and Safety Code, is amended to read as follows:
Sec.i142.022.iiEXEMPTIONS FOR NURSING STUDENTS AND MEDICATION AIDE TRAINEES. (a) Sections 142.021 and 142.029 do not apply to:
(1)iia graduate nurse holding a temporary permit issued by the Board of Nurse Examiners;
(2)iia student enrolled in an accredited school of nursing or program for the education of registered nurses who is administering medications as part of the student's clinical experience;
(3)iia graduate vocational nurse holding a temporary permit issued by the
Board of [Vocational] Nurse Examiners;
(4)iia student enrolled in an accredited school of vocational nursing or program for the education of vocational nurses who is administering medications as part of the student's clinical experience; or
(5)iia trainee in a medication aide training program approved by the department under Section 142.024 who is administering medications as part of the trainee's clinical experience.
(b)iiThe administration of medications by persons exempted under Subdivisions
(1) through (4) of Subsection (a) is governed by the terms of the memorandum of
understanding executed by the department and the Board of Nurse Examiners [or the
department and the Board of Vocational Nurse Examiners, as appropriate].
SECTIONi____.iiSection 164.003(6), Health and Safety Code, is amended to read as follows:
(6)ii"Mental health professional" means a:
3702 78th Legislature — Regular Session 82nd Day
(A)ii"physician" as defined by Section 571.003;
(B)ii"licensed professional counselor" as defined by Section 503.002, Occupations Code;
(C)ii"chemical dependency counselor" as defined by Section 504.001, Occupations Code;
(D)ii"psychologist" offering "psychological services" as defined by Section 501.003, Occupations Code;
(E)ii"registered nurse" licensed under Chapter 301, Occupations Code;
(F)ii"[licensed] vocational nurse" licensed under Chapter 301 [as
defined by Section 302.001], Occupations Code;
(G)ii"licensed marriage and family therapist" as defined by Section 502.002, Occupations Code; and
(H)ii"social worker" as defined by Section 505.002, Occupations Code.
SECTIONi____.iiSection 242.607, Health and Safety Code, is amended to read as follows:
Sec.i242.607.iiEXEMPTIONS FOR NURSING STUDENTS AND MEDICATION AIDE TRAINEES. (a) Sections 242.606 and 242.614 do not apply to:
(1)iia graduate nurse holding a temporary permit issued by the Board of Nurse Examiners;
(2)iia student enrolled in an accredited school of nursing or program for the education of registered nurses who is administering medications as part of the student's clinical experience;
(3)iia graduate vocational nurse holding a temporary permit issued by the
Board of [Vocational] Nurse Examiners;
(4)iia student enrolled in an accredited school of vocational nursing or program for the education of vocational nurses who is administering medications as part of the student's clinical experience; or
(5)iia trainee in a medication aide training program approved by the department under this subchapter who is administering medications as part of the trainee's clinical experience.
(b)iiThe administration of medications by persons exempted under Subdivisions
(1) through (4) of Subsection (a) is governed by the terms of the memorandum of
understanding executed by the department and the Board of Nurse Examiners [or the
department and the Board of Vocational Nurse Examiners, as appropriate].
SECTIONi____.iiSection 36.132(a)(2), Human Resources Code, is amended to read as follows:
(2)ii"Licensing authority" means:
(A)iithe Texas State Board of Medical Examiners;
(B)iithe State Board of Dental Examiners;
(C)iithe Texas State Board of Examiners of Psychologists;
(D)iithe Texas State Board of Social Worker Examiners;
(E)iithe Board of Nurse Examiners;
(F)ii[the Board of Vocational Nurse Examiners;
[(G)]iithe Texas Board of Physical Therapy Examiners;
(G)i[(H)]iithe Texas Board of Occupational Therapy Examiners; or
Friday, May 30, 2003 SENATE JOURNAL 3703
(H)i[(I)]iianother state agency authorized to regulate a provider who
receives or is eligible to receive payment for a health care service under the Medicaid
program.
SECTIONi____.iiSection 101.002, Occupations Code, is amended to read as follows:
Sec.i101.002.iiCOMPOSITION OF COUNCIL. The council consists of 14 [15]
members, with one member appointed by each of the following:
(1)iithe Texas Board of Chiropractic Examiners;
(2)iithe State Board of Dental Examiners;
(3)iithe Texas Optometry Board;
(4)iithe Texas State Board of Pharmacy;
(5)iithe Texas State Board of Podiatric Medical Examiners;
(6)iithe State Board of Veterinary Medical Examiners;
(7)iithe Texas State Board of Medical Examiners;
(8)iithe Board of Nurse Examiners;
(9)iithe Texas State Board of Examiners of Psychologists;
(10)ii[the Board of Vocational Nurse Examiners;
[(11)]iithe Texas Funeral Service Commission;
(11)i[(12)]iithe entity that regulates the practice of physical therapy;
(12)i[(13)]iithe entity that regulates the practice of occupational therapy;
(13)i[(14)]iithe health licensing division of the Texas Department of Health;
and
(14)i[(15)]iithe governor's office.
SECTIONi____.iiSection 201.003(a), Occupations Code, is amended to read as follows:
(a)iiThis chapter does not apply to a registered nurse licensed under Chapter 301,
a vocational nurse licensed under Chapter 301 [302], a person who provides spinal
screening services as authorized by Chapter 37, Health and Safety Code, a physical
therapist licensed under Chapter 453, or a massage therapist or a massage therapy
instructor qualified and registered under Chapter 455 if:
(1)iithe person does not represent to the public that the person is a chiropractor or use the term "chiropractor," "chiropractic," "doctor of chiropractic," "D.C.," or any derivative of those terms or initials in connection with the person's name or practice; and
(2)iithe person practices strictly within the scope of the license or registration held in compliance with all laws relating to the license and registration.
SECTIONi____.iiSection 203.402, Occupations Code, is amended to read as follows:
Sec.i203.402.iiPROHIBITED REPRESENTATION. A midwife may not:
(1)iiexcept as provided by Section 203.403, use in connection with the midwife's name a title, abbreviation, or designation tending to imply that the midwife is a "registered" or "certified" midwife as opposed to one who is documented under this chapter;
(2)iiadvertise or represent that the midwife is a physician or a graduate of a medical school unless the midwife is licensed to practice medicine by the Texas State Board of Medical Examiners;
3704 78th Legislature — Regular Session 82nd Day
(3)iiuse advertising or an identification statement that is false, misleading, or deceptive; or
(4)iiexcept as authorized by rules adopted by the Board of Nurse Examiners
[and the Board of Vocational Nurse Examiners], use in combination with the term
"midwife" the term "nurse" or another title, initial, or designation that implies that the
midwife is licensed as a registered nurse or [licensed] vocational nurse.
SECTIONi____.iiSection 206.253(a), Occupations Code, is amended to read as follows:
(a)iiThis chapter does not authorize a person who holds a license issued under this chapter to engage in the practice of:
(1)iimedicine, as defined by Subtitle B[, Title 3, Occupations Code]; or
(2)ii[professional] nursing, as defined by Chapter 301[, Occupations Code;
or
[(3)iinursing, as defined by Chapter 302, Occupations Code].
SECTIONi____.iiSection 22.011(c)(3), Penal Code, is amended to read as follows:
(3)ii"Health care services provider" means:
(A)iia physician licensed under Subtitle B, Title 3, Occupations Code;
(B)iia chiropractor licensed under Chapter 201, Occupations Code;
(C)ii[a licensed vocational nurse licensed under Chapter 302,
Occupations Code;
[(D)]iia physical therapist licensed under Chapter 453, Occupations
Code;
(D)i[(E)]iia physician assistant licensed under Chapter 204, Occupations
Code; or
(E)i[(F)]iia registered nurse, a vocational nurse, or an advanced practice
nurse licensed under Chapter 301, Occupations Code.
SECTIONi____.iiSections 303.001(2) and (3), Occupations Code, are amended to read as follows:
(2)ii"Nurse" means a registered nurse [licensed under Chapter 301] or a
[licensed] vocational nurse licensed under Chapter 301 [302].
(3)ii"Nursing" has the meaning assigned by Section 301.002 [means
professional nursing as defined by Chapter 301 or vocational nursing as defined by
Chapter 302].
SECTIONi____.iiSection 303.002(b), Occupations Code, is amended to read as follows:
(b)iiThe board shall enter into a memorandum of understanding with each state
agency that licenses, registers, or certifies a facility required by law to have a nursing
[registered nurse] peer review committee. The memorandum of understanding must:
(1)iistate the actions the board and agency are to take to encourage
compliance with the requirement to have a nursing [registered nurse] peer review
committee; and
(2)iibe adopted as a rule of the board and the agency.
SECTIONi____.iiSections 303.003(b) and (c), Occupations Code, are amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3705
(b)iiA nursing peer review committee that conducts a peer review that involves
only the practice of vocational nursing must have registered nurses and [licensed]
vocational nurses as three-fourths of its members, to the extent feasible must include
[licensed] vocational nurses as members, and may have only registered nurses and
[licensed] vocational nurses as voting members.
(c)iiA nursing peer review committee that conducts a peer review that involves
the practice of both professional nursing and [licensed] vocational nursing:
(1)iimust have registered nurses and [licensed] vocational nurses as
four-fifths of its members, with registered nurses as three-fifths of its members;
(2)iito the extent feasible must include [licensed] vocational nurses as
members; and
(3)iimay have only:
(A)iiregistered nurses and [licensed] vocational nurses as voting
members when a [licensed] vocational nurse is being reviewed; and
(B)iiregistered nurses as voting members when a registered nurse is being reviewed.
SECTIONi____.iiSection 303.005, Occupations Code, is amended by amending Subsections (a), (b), (c), (d), and (f) and adding Subsection (h) to read as follows:
(a)iiIn this section, "duty to a patient" means conduct required by standards of
practice or professional conduct adopted by the board for nurses. The term includes
administrative decisions directly affecting a [registered] nurse's ability to comply with
that duty.
(b)iiIf a person who regularly employs, hires, or otherwise contracts for the
services of at least 10 [registered] nurses requests one of those nurses to engage in
conduct that the nurse believes violates a [registered] nurse's duty to a patient, the
nurse may request, on a form produced by the board, a determination by a nursing
peer review committee under this chapter of whether the conduct violates a
[registered] nurse's duty to a patient.
(c)iiA [registered] nurse who in good faith requests a peer review determination
under Subsection (b):
(1)iimay not be disciplined or discriminated against for making the request;
(2)iimay engage in the requested conduct pending the peer review;
(3)iiis not subject to the reporting requirement under Subchapter I, Chapter 301; and
(4)iimay not be disciplined by the board for engaging in that conduct while the peer review is pending.
(d)iiThe determinations of the peer review committee shall be considered in a
decision to discipline the nurse, but the determinations are not binding if a [registered]
nurse administrator believes in good faith that the peer review committee has
incorrectly determined a [registered] nurse's duty.
(f)iiA [registered] nurse's rights under this section may not be nullified by a
contract.
(h)iiA person is not required to provide a peer review determination under this section for a request made by:
(1)iia registered nurse, unless the person regularly employs, hires, or otherwise contracts for the services of at least five registered nurses; or
3706 78th Legislature — Regular Session 82nd Day
(2)iia vocational nurse, unless the person regularly employs, hires, or otherwise contracts for the services of at least five vocational nurses.
SECTIONi____.iiSection 304.002, Occupations Code, as added by Chapter 1420, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i304.002.iiADMINISTRATION OF COMPACT. The executive director
[directors] of the Board of Nurse Examiners is [and the Board of Vocational Nurse
Examiners are] the Nurse Licensure Compact administrator [administrators] for this
state. [The executive director of the Board of Nurse Examiners is responsible for
administering matters relating to registered nurses. The executive director of the
Board of Vocational Nurse Examiners is responsible for administering matters relating
to licensed vocational nurses.]
SECTIONi____.iiSection 304.003, Occupations Code, as added by Chapter 1420, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i304.003.iiRULES. The Board of Nurse Examiners [and the Board of
Vocational Nurse Examiners] may adopt rules necessary to implement this chapter.
SECTIONi____.iiSections 304.004(b) and (c), Occupations Code, as added by Chapter 1420, Acts of the 77th Legislature, Regular Session, 2001, are amended to read as follows:
(b)iiUnless the context indicates otherwise or doing so would be inconsistent
with the Nurse Licensure Compact, nurses practicing in this state under a license
issued by a state that is a party to the Nurse Licensure Compact have the same rights
and obligations as imposed by the laws of this state on license holders of the Board of
Nurse Examiners [or the Board of Vocational Nurse Examiners].
(c)iiThe Board of Nurse Examiners has [and the Board of Vocational Nurse
Examiners have] the authority to determine whether a right or obligation imposed on
license holders applies to nurses practicing in this state under a license issued by a
state that is a party to the Nurse Licensure Compact unless that determination is
inconsistent with the Nurse Licensure Compact.
SECTIONi____.iiSection 304.005, Occupations Code, as added by Chapter 1420, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i304.005.iiENFORCEMENT. The Board of Nurse Examiners is [and the
Board of Vocational Nurse Examiners are] the state agency [agencies] responsible for
taking action against registered and vocational nurses practicing in this state under a
license issued by a state that is a party to the Nurse Licensure Compact as authorized
by the Nurse Licensure Compact. The action shall be taken in accordance with the
same procedures for taking action against registered and vocational nurses licensed by
this state.
SECTIONi____.iiSection 304.006(a), Occupations Code, as added by Chapter 1420, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
(a)iiOn request and payment of a reasonable fee, the Board of Nurse Examiners
[and the Board of Vocational Nurse Examiners] shall provide a registered or
vocational nurse licensed by this state with a copy of information regarding the nurse
maintained by the coordinated licensure information system under Article 7 of the
Nurse Licensure Compact.
Friday, May 30, 2003 SENATE JOURNAL 3707
SECTIONi____.iiSection 304.007, Occupations Code, as added by Chapter 1420, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i304.007.iiACCESS TO PRACTICE-RELATED INFORMATION.
Practice-related information provided by the Board of Nurse Examiners [or the Board
of Vocational Nurse Examiners] to registered or vocational nurses licensed by this
state shall be made available by the board [boards] on request and at a reasonable cost
to nurses practicing in this state under a license issued by a state that is a party to the
Nurse Licensure Compact.
SECTIONi____.iiSection 304.008(a), Occupations Code, as added by Chapter 1420, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
(a)iiIn reporting information to the coordinated licensure information system
under Article 7 of the Nurse Licensure Compact, the Board of Nurse Examiners [and
the Board of Vocational Nurse Examiners] may disclose personally identifiable
information about the nurse, including social security number.
SECTIONi____.iiSection 304.009, Occupations Code, as added by Chapter 1420, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i304.009.iiWITHDRAWAL FROM COMPACT. (a) The governor may
withdraw this state from the Nurse Licensure Compact if the Board of Nurse
Examiners [or the Board of Vocational Nurse Examiners] notifies the governor that a
state that is party to the compact changed, after January 1, 1999, the state's
requirements for licensing a nurse and that the state's requirements, as changed, are
substantially lower than the requirements for licensing a nurse in this state.
(b)iiThe governor may completely withdraw this state from the Nurse Licensure
Compact or may limit withdrawal to the application of the compact to registered
nurses or [licensed] vocational nurses.
SECTIONi____.iiSection 304.001(3), Occupations Code, as added by Chapter 1489, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
(3)ii"Nurse" means a registered nurse or a [licensed] vocational nurse.
ARTICLE ____. TEMPORARY LICENSE SUSPENSIONS
SECTIONi____.iiSections 301.455(c) and (d), Occupations Code, are amended to read as follows:
(c)iiThe State Office of Administrative Hearings shall hold a preliminary hearing
not later than the 30th [14th] day after the date of the temporary suspension to
determine, de novo, whether probable cause exists that a continuing and imminent
threat to the public welfare exists.
(d)iiA final hearing on the matter shall be held not later than the 91st [61st] day
after the date of the temporary suspension.
SECTIONi____.iiThis article applies only to a hearing held on or after the effective date of this part.
ARTICLE ____. CRIMINAL HISTORY RECORDS
SECTIONi____.iiSubchapter D, Chapter 301, Occupations Code, is amended by adding Section 301.1615 to read as follows:
3708 78th Legislature — Regular Session 82nd Day
Sec.i301.1615.iiOBTAINING CRIMINAL HISTORY RECORD INFORMATION; HEARING. (a) In addition to the information to which the board is entitled under Section 411.125, Government Code, the board may request and receive criminal history record information from the Federal Bureau of Investigation as provided by Section 411.087, Government Code.
(b)iiCriminal history record information received by the board may be used only by the board and is privileged. The information may not be disclosed to any person other than:
(1)iias required under a court order; or
(2)iito a nursing board that is a member of the nurse licensure compact under Chapter 304.
(c)iiIf, on the basis of criminal history record information obtained by the board, the board proposes to deny an application for a license, refuse to renew a license, or suspend or revoke a license or temporary permit, the applicant or license holder is entitled to a hearing under Section 301.454.
SECTIONi____.iiSubchapter F, Chapter 301, Occupations Code, is amended by adding Section 301.2511 to read as follows:
Sec.i301.2511.iiCRIMINAL HISTORY RECORD INFORMATION FOR LICENSE APPLICANTS. (a) An applicant for a registered nurse license must submit to the board, in addition to satisfying the other requirements of this subchapter, a complete and legible set of fingerprints, on a form prescribed by the board, for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation.
(b)iiThe board may deny a license to an applicant who does not comply with the requirement of Subsection (a). Issuance of a license by the board is conditioned on the board obtaining the applicant's criminal history record information under this section.
(c)iiThe board by rule may develop a system for initiating the process of obtaining criminal history record information for applicants for a license under this chapter by requiring persons who enroll or plan to enroll in an educational program that prepares a person for a license as a registered nurse to submit to the board a set of fingerprints that meets the requirements of Subsection (a). The board may require payment of a fee by a person who is required to submit a set of fingerprints under this subsection.
SECTIONi____.iiSubchapter G, Chapter 301, Occupations Code, is amended by adding Section 301.3011 to read as follows:
Sec.i301.3011.iiCRIMINAL HISTORY RECORD INFORMATION REQUIREMENT FOR RENEWAL. (a) The board may require that an applicant for renewal of an unexpired license submit to the board, in addition to satisfying any other requirements for license renewal, a complete and legible set of fingerprints, on a form prescribed by the board, for the purpose of obtaining criminal history record information from the Department of Public Safety and the Federal Bureau of Investigation.
(b)iiThe board may refuse to renew the license of a person who does not comply with the requirement of Subsection (a). Renewal of a license by the board is conditioned on the board obtaining the person's criminal history record information under this section.
Friday, May 30, 2003 SENATE JOURNAL 3709
SECTIONi____.iiSection 411.125(a), Government Code, is amended to read as follows:
(a)iiThe Board of Nurse Examiners is entitled to obtain from the department criminal history record information maintained by the department that relates to a person who:
(1)iiis an applicant for or the holder of a license issued by [from] the board;
(2)iihas requested a determination of eligibility for a license from the board; or
(3)iiis subject to investigation by the board in connection with a complaint or formal charge against the person.
SECTIONi____.iiThe change in law made by this article applies only to an application for the issuance or renewal of a license that is filed with the Board of Nurse Examiners on or after the effective date of this part. An application for the issuance or renewal of a license that is filed before the effective date of this part is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.
ARTICLE ____. REPEALER; TRANSITION; EFFECTIVE DATE
SECTIONi____.iiOn February 1, 2004, the following laws are repealed:
(1)iiChapter 302, Occupations Code; and
(2)iiSection 303.002(a), Occupations Code.
SECTIONi____.ii(a) This section provides for the appointment of members to the Board of Nurse Examiners for terms beginning February 1, 2004, to establish the staggering of members' terms in accordance with Sections 301.051 and 301.054, Occupations Code, as amended by this part.
(b)iiThe term of one of two registered nurse members of the Board of Nurse Examiners scheduled to expire in 2007 expires January 31, 2004. Those members shall agree or draw lots to determine whose term expires on that date. Effective February 1, 2004, the governor shall appoint one person who is a nurse faculty member of a school of nursing offering vocational nurse training to fill that vacancy and to serve a term expiring January 31, 2007.
(c)iiEffective February 1, 2004, the governor shall appoint one person who shall serve as a public member of the Board of Nurse Examiners with a term expiring January 31, 2009, as provided under Section 301.051, Occupations Code, as amended by this part.
(d)iiEffective February 1, 2004, the governor shall appoint three additional members to the Board of Nurse Examiners to serve in the position of vocational nurse, as provided under Section 301.051, Occupations Code, as amended by this part. In appointing those members, the governor shall appoint one person to a term expiring January 31, 2005, one to a term expiring January 31, 2007, and one to a term expiring January 31, 2009.
SECTIONi____.ii(a) On February 1, 2004:
(1)iiall functions and activities performed by the Board of Vocational Nurse Examiners immediately before that date are transferred to the Board of Nurse Examiners;
3710 78th Legislature — Regular Session 82nd Day
(2)iia rule or form adopted by the Board of Vocational Nurse Examiners is a rule or form of the Board of Nurse Examiners and remains in effect until amended or replaced by that board;
(3)iia reference in law or an administrative rule to the Board of Vocational Nurse Examiners means the Board of Nurse Examiners;
(4)iia complaint, investigation, or other proceeding before the Board of Vocational Nurse Examiners is transferred without change in status to the Board of Nurse Examiners, and the Board of Nurse Examiners assumes, as appropriate and without a change in status, the position of the Board of Vocational Nurse Examiners in an action or proceeding to which the Board of Vocational Nurse Examiners is a party;
(5)iiall money, contracts, leases, property, and obligations of the Board of Vocational Nurse Examiners are transferred to the Board of Nurse Examiners;
(6)iia license issued by the Board of Vocational Nurse Examiners is a license of the Board of Nurse Examiners;
(7)iian employee of the Board of Vocational Nurse Examiners, except for the Board of Vocational Nurse Examiners' executive director, becomes an employee of the Board of Nurse Examiners; and
(8)iithe unexpended and unobligated balance of any money appropriated by the legislature for the Board of Vocational Nurse Examiners is transferred to the Board of Nurse Examiners.
(b)iiBefore February 1, 2004, the Board of Vocational Nurse Examiners may agree with the Board of Nurse Examiners to transfer any property of the Board of Vocational Nurse Examiners to the Board of Nurse Examiners to implement the transfer required by this section.
(c)iiIn the period beginning on the effective date of this Act and ending on January 31, 2004, the Board of Vocational Nurse Examiners shall continue to perform functions and activities under Chapter 302, Occupations Code, or other law as if that chapter had not been repealed or other law had not been amended by this part, and the former law is continued in effect for that purpose.
SECTIONi____.ii(a) Not later than June 1, 2004, the Board of Nurse Examiners shall adopt the rules required by Section 301.305, Occupations Code, as added by this part.
(b)iiA license holder may not be required to complete the continuing education requirements imposed by Section 301.305, Occupations Code, as added by this part, before June 1, 2006.
(c)iiAs part of the next review conducted under Section 301.003, Occupations Code, as amended by this part, the Sunset Advisory Commission shall evaluate the necessity and effectiveness of mandating continuing education courses for nurses on specific topics.
SECTIONi____.iiIn 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.
SECTIONi____.ii(a) Except as provided by Subsection (b) of this section, this part takes effect September 1, 2003.
(b)iiArticle ____ of this part (Conforming Amendments For Single Nursing Board) takes effect February 1, 2004.
Friday, May 30, 2003 SENATE JOURNAL 3711
Floor Amendment No. 43
Amend CSSB 1952 by adding the following appropriately numbered SECTION and renumbering subsequent SECTIONS of the bill accordingly:
SECTIONi____.ii(a) Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.063 to read as follows:
Sec.i531.063.iiJOINT PURCHASING OF PRESCRIPTION DRUGS AND OTHER MEDICATIONS. (a) Notwithstanding any other law, the commission and each health and human services agency authorized by the commission may enter into an agreement with one or more other states for the joint bulk purchasing of prescription drugs and other medications to be used in the Medicaid program or another government-funded health program in this state.
(b)iiThe commission shall adopt procedures applicable to an agreement and joint purchase authorized by this section. The procedures must ensure that this state receives:
(1)iiall prescription drugs and other medications purchased with money provided by this state; and
(2)iian equitable share of any price benefits resulting from the joint bulk purchase.
(b)iiIf before implementing any provision of this section a state agency determines that a waiver or authorization from a federal agency is necessary for implementation of that provision, the agency affected by the provision shall request the waiver or authorization and may delay implementing that provision until the waiver or authorization is granted.
Floor Amendment No. 44
Amend CSSB 1952 by adding a new section with the following:
SECTIONi1.iiSection 62.053, Health and Safety Code, is amended by adding Subsections (d) and (e) to read as follows:
(d)iiNotwithstanding Section 62.055 and subject to Subsection (e), the Texas Department of Human Services shall assume responsibility for eligibility screening and enrollment under the child health plan and may not contract for those services with a third party administrator or other entity, if the commission, after conducting a cost-benefit analysis of requiring the department to assume responsibility for these services, determines that the department is able to:
(1)iisatisfy the same performance standards applicable to a third party administrator or other entity; and
(2)iiperform these services less expensively than a third party administrator.
(e)iiThe Texas Department of Human Services may not assume responsibility for eligibility screening and enrollment under the child health plan before the Texas Integrated Eligibility Redesign System is developed and the child health plan is integrated into that system.
SECTIONi2.iiThis Act takes effect September 1, 2003.
Floor Amendment No. 45
Amend CSSB 1952 by adding the following appropriately numbered ARTICLE to PART 1 of the bill:
3712 78th Legislature — Regular Session 82nd Day
ARTICLE ____. STATE AIRCRAFT POOLING BOARD
SECTIONi____.iiThe heading to Chapter 2205, Government Code, is amended to read as follows:
CHAPTER 2205. STATE-OPERATED AIRCRAFT [POOLING]
SECTIONi____.iiSubchapter B, Chapter 2205, Government Code, is amended by adding Section 2205.0315 to read as follows:
Sec.i2205.0315.iiDEFINITION. In this chapter, "department" means the Department of Public Safety of the State of Texas.
SECTIONi____.iiSection 2205.032, Government Code, is amended to read as follows:
Sec.i2205.032.iiTRANSPORTATION [CUSTODY, CONTROL, OPERATION,]
AND MAINTENANCE. (a) The department shall maintain [board shall operate a
pool for the custody, control, operation, and maintenance of] all aircraft owned or
leased by the state.
(b)iiThe department [board] may provide aircraft transportation under Section
2205.036 [purchase aircraft with funds appropriated for that purpose].
[(c)iiAs part of the strategic plan that the board develops and submits under
Chapter 2056, the board shall develop a long-range plan for its pool of aircraft. The
board shall include appropriate portions of the long-range plan in its legislative
appropriations request. The long-range plan must include estimates of future aircraft
replacement needs and other fleet management needs, including any projected need to
increase or decrease the number of aircraft in the pool. In developing the long-range
plan, the board shall consider at a minimum for each aircraft in the pool:
[(1)iihow much the aircraft is used and the purposes for which it is used;
[(2)iithe cost of operating the aircraft and the revenue generated by the
aircraft; and
[(3)iithe demand for the aircraft or for that type of aircraft.]
SECTIONi____.iiSection 2205.034, Government Code, is amended to read as follows:
Sec.i2205.034.iiFACILITIES. (a) The department [board] may acquire
appropriate facilities for the accommodation of all aircraft owned or leased by the
state. The facilities may be purchased or leased as determined by the department
[board] to be most economical for the state and as provided by legislative
appropriations. The facilities may include adequate hangar space, an indoor passenger
waiting area, a flight-planning area, communications facilities, and other related and
necessary facilities.
(b)iiA state agency that operates an aircraft may not use a facility in Austin other
than a facility operated by the department [board] for the storage, parking, fueling, or
maintenance of the aircraft, whether or not the aircraft is based in Austin. In a
situation the department [board] determines to be an emergency, the department
[board] may authorize a state agency to use a facility in Austin other than a
department [board] facility for the storage, parking, fueling, or maintenance of an
aircraft.
SECTIONi____.iiSection 2205.036, Government Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3713
Sec.i2205.036.iiPASSENGER TRANSPORTATION. (a) The department may
[board shall] provide aircraft transportation, to the extent that its aircraft are available,
to:
(1)iistate officers and employees who are traveling on official business according to the coordinated passenger scheduling system and the priority scheduling system developed as part of the aircraft operations manual under Section 2205.038;
(2)iipersons in the care or custody of state officers or employees described by Subdivision (1); and
(3)iipersons whose transportation furthers official state business.
(b)iiThe department [board] may not provide aircraft transportation to a
passenger if the passenger is to be transported to or from a place where the passenger:
(1)iiwill make or has made a speech not related to official state business;
(2)iiwill attend or has attended an event sponsored by a political party;
(3)iiwill perform a service or has performed a service for which the passenger is to receive an honorarium, unless the passenger reimburses the board for the cost of transportation;
(4)iiwill attend or has attended an event at which money is raised for private or political purposes; or
(5)iiwill attend or has attended an event at which an audience was charged an admission fee to see or hear the passenger.
(c)iiThe department [board] may not provide aircraft transportation to a
destination unless:
(1)iithe destination is not served by a commercial carrier;
(2)iithe time required to use a commercial carrier interferes with passenger obligations; or
(3)iithe number of passengers traveling makes the use of state aircraft cost-effective.
(d)iiThe department shall monitor and ensure compliance with the requirements of this section.
SECTIONi____.iiSubchapter B, Chapter 2205, Government Code, is amended by adding Section 2205.0365 to read as follows:
Sec.i2205.0365.iiCONTRACTS. (a) The department may negotiate contracts with private charter aircraft providers to obtain the most cost-effective rates possible for transportation of state officers and employees traveling on official business.
(b)iiThe department may contract with a flight safety consultant in developing safety guidelines for charter aircraft providers.
(c)iiA contract described by Subsection (a) may provide that:
(1)iia state agency using charter services shall pay the charter aircraft provider directly for charter services; or
(2)iithe department shall pay the charter aircraft provider for services and be reimbursed by state agencies using the charter services.
SECTIONi____.iiSection 2205.038, Government Code, is amended to read as follows:
Sec.i2205.038.iiAIRCRAFT OPERATIONS MANUAL. (a) The department
[board] shall:
3714 78th Legislature — Regular Session 82nd Day
(1)iiprepare a manual that establishes minimum standards for the operation of aircraft by state agencies; and
(2)iiadopt procedures for the distribution of the manual to state agencies.
(b)iiThe manual must include provisions for:
(1)iipilot certification standards, including medical requirements for pilots;
(2)iirecurring training programs for pilots;
(3)iigeneral operating and flight rules;
(4)iicoordinated passenger scheduling; and
(5)iiother issues the department [board] determines are necessary to ensure
the efficient and safe operation of aircraft by a state agency.
(c)iiThe department [board] shall confer with and solicit the written advice of
state agencies that operate state-owned aircraft and state agencies the department
[board] determines are principal users of aircraft operated by the department [board]
and, to the extent practicable, incorporate that advice in the development of the
manual and subsequent changes to the manual.
(d)iiThe department [board] shall give an officer normally elected by statewide
election priority in the scheduling of aircraft. The department [board] by rule may
require appropriate advance [a 12-hour] notice by the officer to obtain the priority in
scheduling.
SECTIONi____.iiSection 2205.039, Government Code, is amended to read as follows:
Sec.i2205.039.iiTRAVEL LOG. (a) The Legislative Budget Board, in
cooperation with the department [board], shall prescribe:
(1)iia travel log form for gathering information about the use of state-operated aircraft;
(2)iiprocedures to ensure that individuals who travel as passengers on or operate state-operated aircraft provide in a legible manner the information requested of them by the form; and
(3)iiprocedures for each state agency that operates an aircraft for sending the
form to the department [board] and the Legislative Budget Board.
(b)iiThe travel log form must request the following information about a state-operated aircraft each time the aircraft is flown:
(1)iia mission statement, which may appear as a selection to be identified from general categories appearing on the form;
(2)iithe name, state agency represented, destination, and signature of each person who is a passenger or crew member of the aircraft;
(3)iithe date of each flight;
(4)iia detailed and specific description of the official business purpose of each flight; and
(5)iiother information determined by the Legislative Budget Board and the
department [board] to be necessary to monitor the proper use of the aircraft.
(c)iiA state agency other than the department [board] shall send travel logs to the
department [board] each month in which the agency operates an aircraft.
(d)iiThe department shall monitor and ensure compliance by state agencies with the requirements of this section.
Friday, May 30, 2003 SENATE JOURNAL 3715
(e)iiThe department shall annually report to the Legislative Budget Board on air travel information received under this section.
SECTIONi____.iiSection 2205.040, Government Code, is amended to read as follows:
Sec.i2205.040.iiRATES AND BILLING PROCEDURES. (a) The department
[board] shall adopt rates for interagency aircraft services that are sufficient to recover,
in the aggregate and to the extent possible, all direct and indirect costs for the services
provided, including a state agency's pro rata share of major maintenance, overhauls of
equipment and facilities, and pilots' salaries.
(b)iiThe Legislative Budget Board, in cooperation with the department [board]
and the state auditor, shall prescribe a billing procedure for passenger travel on
state-operated aircraft.
SECTIONi____.iiSection 2205.041(a), Government Code, is amended to read as follows:
(a)iiThe Legislative Budget Board, in cooperation with the department [board],
shall prescribe:
(1)iian annual aircraft use form for gathering information about the use of state-operated aircraft, including the extent to which and the methods by which the goal provided by Section 2205.031(b) is being met; and
(2)iiprocedures for each state agency that operates an aircraft for sending the
form to the department [board] and the Legislative Budget Board.
SECTIONi____.iiSection 2205.043(b), Government Code, is amended to read as follows:
(b)iiThe department [board] shall adopt rules, consistent with federal regulations
and Subtitle A, Title 11 [Article 6139f, Revised Statutes], governing the color, size,
and location of marks of identification required by this section.
SECTIONi____.iiSection 2205.044, Government Code, is amended to read as follows:
Sec.i2205.044.iiFUEL AND MAINTENANCE CONTRACTS. The department
[board] may contract with a state or federal governmental agency or a political
subdivision to provide aircraft fuel or to provide aircraft maintenance services.
SECTIONi____.iiSection 2205.045(a), Government Code, is amended to read as follows:
(a)iiThe department shall negotiate [board may purchase] insurance contracts to
protect the state [board] from loss caused by damage, loss, theft, or destruction of
aircraft owned or leased by the state and shall negotiate [purchase] liability insurance
contracts to protect the officers and employees of each state agency from loss arising
from the operation of state-owned aircraft.
SECTIONi____.iiSection 2205.047, Government Code, is amended to read as follows:
Sec.i2205.047.iiINFORMATION POSTED ON THE INTERNET. The
department [board] shall post information related to travel and other services provided
by the department under this chapter [board] on an Internet site maintained by or for
the department [board]. The site must be generally accessible to state agencies,
persons who use the department's [board's] services, and, to the extent appropriate,
the general public.
3716 78th Legislature — Regular Session 82nd Day
SECTIONi____.iiThe following laws are repealed:
(1)iiSubchapter A, Chapter 2205, Government Code;
(2)iiSection 2205.035, Government Code;
(3)iiSection 2205.042, Government Code; and
(4)iiSection 2205.046, Government Code.
SECTIONi____.ii(a) The Department of Public Safety of the State of Texas, the State Aircraft Pooling Board, and the Texas Public Finance Authority, in consultation with the Texas Building and Procurement Commission and the General Land Office, shall establish a transition team to oversee the orderly transition of property, services, and certain employees from the State Aircraft Pooling Board to the Department of Public Safety of the State of Texas. The team shall:
(1)iidetermine when:
(A)iithe Department of Public Safety of the State of Texas will begin to perform a function or activity of the State Aircraft Pooling Board;
(B)iithe State Aircraft Pooling Board will cease to perform a function that is discontinued under Chapter 2205, Government Code, as amended by this Act;
(C)iian employee of the board whose primary duties involve maintenance of aircraft becomes an employee of the department; and
(D)iia King Air 200 aircraft with an aircraft identification number of N808WD becomes property of the Department of Public Safety of the State of Texas;
(2)iiinventory all equipment and other property required to be transferred or sold;
(3)iidetermine any continued support and cooperation the board must provide the department before the board is abolished to ensure an efficient continuation of service and of planning for future needs; and
(4)iiensure that:
(A)iithe transition is complete by January 1, 2004; and
(B)iiall board employee positions, except the positions of employees serving on the transition team or employees whose primary duties involve maintenance of aircraft, are eliminated by September 1, 2003.
(b)iiThe transition team and the State Aircraft Pooling Board are abolished on January 1, 2004.
SECTIONi____.ii(a) By September 1, 2004, the Texas Building and Procurement Commission, in consultation with the Department of Public Safety of the State of Texas, shall sell for fair market value all state aircraft and aircraft-related equipment, other than equipment used in the maintenance of aircraft formerly under the custody of the State Aircraft Pooling Board and a King Air 200 aircraft with an aircraft identification number of N808WD. If bonds were issued in connection with acquiring or maintaining the aircraft or equipment or in connection with other board purposes, the proceeds from the sale of the aircraft and equipment shall be used to pay off the bonds to the extent the proceeds of the bonds were expended for those purposes.
(b)iiBy September 1, 2005, the General Land Office, in consultation with the Texas Public Finance Authority, shall sell all State Aircraft Pooling Board facilities, other than facilities used for maintenance or housing of aircraft owned or operated by state agencies other than the board, located at the Austin-Bergstrom International
Friday, May 30, 2003 SENATE JOURNAL 3717
(1)iia current lessee of the facilities;
(2)iia neighboring property owner of the facilities; or
(3)iia political subdivision of the state, including Travis County or the City of Austin.
(c)iiBy September 1, 2005, the General Land Office shall sell all State Aircraft Pooling Board facilities located at the site of the former Robert Mueller Municipal Airport for not less than the amount contained in the current market value assessment of the property that shall be made by the General Land Office. If bonds were issued in connection with acquiring or maintaining the facilities located at the site of the former Robert Mueller Municipal Airport, the proceeds from the sale of the facilities shall be used to pay off the bonds to the extent the proceeds of the bonds were expended for acquiring or maintaining the facilities. The General Land Office, at the discretion of the commissioner of the General Land Office, may offer the facilities for sale by competitive bid in accordance with Section 31.158, Natural Resources Code. Alternatively, the General Land Office may negotiate a direct sale of the facilities to:
(1)iia current lessee of the facilities;
(2)iia neighboring property owner of the facilities; or
(3)iia political subdivision of the state, including Travis County or the City of Austin.
Floor Amendment No. 46
Amend Floor Amendment No. 45 to CSSB 1952 as follows:
(1) On page 9, line 29, insert the following after "sell": "or lease";
(2) On page 10, strike line 3;
(3) On page 10, line 4, strike "that shall be made" and substitute "determined"; and
(4) On page 10, line 7, between "sale" and "of", insert "or lease".
Floor Amendment No. 47
Amend CSSB 1952 (House committee printing), by striking Article 5B (page 110, line 16, through page 138, line 24) and adding a new Article 5B to read as follows:
ARTICLE 5B. PRISON PRIVATIZATION STUDY
SECTIONi5B.01.iiCREATION. The select committee on prison privatization is created.
SECTIONi5B.02.iiCOMPOSITION. (a) The select committee is composed of:
(1)iithree members appointed by the governor;
(2)iithree members appointed by the lieutenant governor;
3718 78th Legislature — Regular Session 82nd Day
(3)iithree members appointed by the speaker of the house of representatives;
(4)iione member employed by the Legislative Budget Board and appointed by the executive director of that board;
(5)iione member employed by and appointed by the comptroller;
(6)iione member employed by and appointed by the state auditor; and
(7)iione member employed by the Criminal Justice Policy Council and appointed by the executive director of that council.
(b)iiEach individual required to make an appointment under Subsection (a) shall make the appointment as soon as possible after the effective date of this Act, but not later than October 1, 2003.
SECTIONi5B.03.iiDUTIES. (a) The select committee on prison privatization shall prepare a report that, for the purposes of comparing cost effectiveness and program effectiveness of prison facilities operated by the Texas Department of Criminal Justice and prison facilities operated by or potentially operated by private contractors, analyzes the following issues:
(1)iithe best possible methods and processes for administering and monitoring contracts for prison privatization;
(2)iiwhether an existing agency of the state or a newly created agency should administer future prison privatization contracts;
(3)iithe probable cost savings to the state if prison privatization is increased;
(4)iithe standards that should be used to compare program effectiveness and the best methods for comparing costs for provision of programs by the department and costs for provision of programs by contractors;
(5)iithe history of prison privatization efforts in this state and in other populous states, with special emphasis on subissues related to program effectiveness, performance records, cost savings, ethical concerns, and impact on relevant communities;
(6)iias to potential contractors, the backgrounds and past achievements of those contractors;
(7)iiwhich facilities or services currently provided primarily by the Texas Department of Criminal Justice could best be performed by a contractor; and
(8)iiwhether ethical standards could be adopted to protect the state from corruption or ethical conflicts.
(b)iiIn addition to the issues described by Subsection (a) of this section, the report must analyze the impact that privatization of a Texas Department of Criminal Justice facility or function would have on the community in which the function is performed or the facility is located, including economic impact, workforce impact, impact caused by higher employee turnover rates, and impact on community facilities and services.
(c)iiThe select committee shall present copies of the report not later than November 1, 2004, to the governor, the lieutenant governor, and the speaker of the house of representatives.
SECTIONi5B.04.iiHEARINGS. The select committee on prison privatization, for the purpose of gathering information necessary for the preparation of the report required by Section 5B.03 of this article, shall hold at least four public hearings. At least one of the hearings must be held in a municipality with a population greater than
Friday, May 30, 2003 SENATE JOURNAL 3719
SECTIONi5B.05.iiEXPIRATION. The select committee on prison privatization is abolished and this article expires November 30, 2004.
Floor Amendment No. 48
Amend Floor Amendment No. 47 to CSSB 1952 as follows:
(1) On page 3, between lines 11 and 12, insert the following:
SECTION 5B.05. FUNDS TRANSFER. The Texas Department of Criminal Justice shall enter into a memorandum of understanding with the select committee on prison privatization to provide the committee with not less than $250,000 from the department's budget for the biennium ending August 31, 2005. The select committee shall use funds received from the department under this section to hire technical assistance that is professional and unbiased and that will assist the committee in performing its duties under this Article. The department and the committee shall enter into the memorandum of understanding not later than October 1, 2003. The memorandum must specify that the funds will be transferred to the select committee according to a schedule established by the committee.
(2) On page 3, line 12, strike "5B.05" and substitute "5B.06".
Floor Amendment No. 49
Amend Floor Amendment No. 47 by Swinford to CSSB 1952 in SECTION 5B.03 by inserting the following after Subsection (b) and relettering the subsequent subsections accordingly:
(b) In addition to the information required by Subsection (a), the report must contain a qualitative and quantitative comparison of the performance of vendors operating facilities under this subtitle and the performance of facilities operated by the department that provide the same level of programs and services. The comparison must provide information on the operations of each vendor and comparable department programs and facilities, including information about treatment programs implemented, numbers of escapes, major disciplinary events, and other matters determined to be important by the commission.
Floor Amendment No. 51
Amend SECTION 9 of CSSB 1952 by inserting the following language (page 229, line 27):
SECTION 9B.01. Subchapter A, Chapter 52, Education Code, is amended by adding Section 52.015 to read as follows:
Sec. 52.015. Performance Review of Student Loan Program. The Comptroller of Public Accounts shall conduct a performance review of the student loan program authorized under this chapter. The performance review shall address whether or not the program should continue to be administered by the state or if the program should be discontinued and sold to one or more qualified buyers. The review shall include a valuation of the student loan portfolio, the potential proceeds from the sale of the board's student loan portfolio, the amount of money needed to redeem the outstanding debt on bonds issued by the board under this chapter, and the likely impact of a sale
3720 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 52
Amend CSSB 1952 (House committee printing) as follows:
(1) In SECTION 2E.03 of the bill, in amended Section 391.0095(a)(6), Local
Government Code (page 59, line 1), strike "and" and substitute "[and]".
(2) In SECTION 2E.03 of the bill, in amended Section 391.0095(a)(7), Local Government Code (page 59, line 3), between "commission" and the period, insert the following:
; and
(8) a statement of whether the restrictions on the use of revenue prescribed by Section 361.014(b), Health and Safety Code, have been followed, if the commission has used funds provided under that section
(3) In SECTION 2E.03 of the bill, in amended Section 391.0095(d), Local
Government Code (page 59, lines 12 and 13), strike "state auditor [governor]" and
substitute "governor".
(4) In SECTION 2E.03 of the bill, in amended Section 391.0095(d), Local Government Code (page 59, line 13), between "comply with" and "a rule", insert "state law or".
(5) In SECTION 2E.03 of the bill, in amended Section 391.0095(d), Local Government Code (page 59, lines 14 and 15), strike "state auditor shall report the failure to the governor. The".
Floor Amendment No. 53
Amend Floor Amendment No. 52 by Chisum to CSSB 1952 by striking Item (3) of the amendment.
Floor Amendment No. 54
Amend CSSB 1952 (House committee report), in PART 9 of the bill by adding the following appropriately numbered ARTICLE to read as follows:
ARTICLE 9__. GENERAL EDUCATION PROVISIONS
SECTION 9__.01. Subchapter B, Chapter 7, Education Code, is amended by adding Section 7.027 to read as follows:
Sec. 7.027. GRANTS. (a) The agency may accept grants for the benefit of public education.
(b) Unless otherwise required by federal law or by the terms of a private grant, the agency may award grants in accordance with a formula or other criteria adopted by agency rule instead of using a competitive process.
SECTION 9__.02. Section 7.102(c)(15), Education Code, is amended to read as follows:
(15) The board shall adopt criteria for identifying gifted and talented
students [and shall develop and update a state plan for the education of gifted and
talented students] as required under Subchapter D, Chapter 29.
Friday, May 30, 2003 SENATE JOURNAL 3721
SECTION 9__.03. Section 8.103, Education Code, is amended to read as follows:
Sec. 8.103. ANNUAL EVALUATION. The commissioner shall conduct an annual evaluation of each executive director and regional education service center. Each evaluation must include:
(1) an audit of the center's finances;
(2) a review of the center's performance on the indicators adopted under Section 8.101; and
(3) [a review of client satisfaction with services provided under Subchapter
B; and
[(4)] a review of any other factor the commissioner determines to be
appropriate.
SECTION 9__.04. Section 21.004(a), Education Code, is amended to read as follows:
(a) To the extent that funds are available, the agency, the State Board for Educator Certification, and the Texas Higher Education Coordinating Board shall develop and implement coordinated programs to identify talented students and recruit those students and persons, including high school and undergraduate students, mid-career and retired professionals, honorably discharged and retired military personnel, and members of underrepresented gender and ethnic groups, into the teaching profession.
SECTION 9__.05. Section 21.355, Education Code, is amended to read as follows:
Sec. 21.355. CONFIDENTIALITY. (a) A document evaluating the performance of a teacher or administer is confidential.
(b) This section does not restrict the use of aggregate results of student performance on academic skills assessment instruments for the purposes of evaluating teacher preparation and training programs as provided by Section 39.030(b).
SECTION 9__.06. Section 29.903, as added by Chapter 795, Acts of the 77th Legislature, Regular Session, 2001, is amended by adding Subsection (h) to read as follows:
(h) This section must be implemented only to the extent that funds are specifically appropriated for the purpose.
SECTION 9__.07. Sections 31.1011(a), (d), and (e), Education Code, are amended to read as follows:
(a) The commissioner shall implement a program to study the use of credits for textbooks. The program shall be designed to allow a participating school district or open-enrollment charter school to receive credit for textbooks purchased at a cost below the cost limit established under Section 31.025(a). The commissioner shall allow any school district or open-enrollment charter school to participate in the program.
(d) The commissioner shall prepare a report relating to the use of the textbook
credit system and deliver the report to the 80th [79th] Legislature.
(e) This section expires September 1, 2007 [2005].
SECTION 9__.08. Section 32.033(a), Education Code, is amended to read as follows:
3722 78th Legislature — Regular Session 82nd Day
(a) The agency, in coordination with institutions of higher education and other
public or private entities, may [shall] maintain and expand, as needed, the
telecommunications capabilities of school districts and regional education service
centers. The agency shall design and implement a telecommunications system for
distance learning throughout the state.
SECTION 9__.09. Section 39.030(b), Education Code, is amended to read as follows:
(b) The results of individual student performance on academic skills assessment
instruments administered under this subchapter are confidential and may be released
only in accordance with the Family Educational Rights and Privacy Act of 1974 (20
U.S.C. Section 1232g). However, overall student performance data shall be
aggregated by ethnicity, sex, grade level, subject area, campus, and district and made
available to the public, with appropriate interpretations, at regularly scheduled
meetings of the board of trustees of each school district. The information may not
contain the names of individual students [or teachers]. Except as otherwise required
by the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section
1232g), this subsection does not restrict the use of aggregate results of student
performance on academic skills assessment instruments for the purpose of evaluating
teacher preparation and training programs, including:
(1) traditional educator preparation programs;
(2) alternative certification programs; and
(3) continuing education courses and programs.
SECTION 9__.10. Section 39.075(a), Education Code, is amended to read as follows:
(a) The commissioner may [shall] authorize special accreditation investigations
to be conducted:
(1) when excessive numbers of absences of students eligible to be tested on state assessment instruments are determined;
(2) when excessive numbers of allowable exemptions from the required state assessment are determined;
(3) in response to complaints submitted to the agency with respect to alleged violations of civil rights or other requirements imposed on the state by federal law or court order;
(4) in response to established compliance reviews of the district's financial accounting practices and state and federal program requirements;
(5) when extraordinary numbers of student placements in alternative education programs, other than placements under Sections 37.006 and 37.007, are determined;
(6) in response to an allegation involving a conflict between members of the board of trustees or between the board and the district administration if it appears that the conflict involves a violation of a role or duty of the board members or the administration clearly defined by this code; or
(7) as the commissioner otherwise determines necessary.
SECTION 9__.11. Section 39.131, Education Code, is amended by adding subsection (k) to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3723
(k) The commissioner may take action under Subsection (a) or (b) against an entity to which a charter is granted under Subchapter B, Chapter 12, based on the failure of one or more campuses operated by that charter holder to satisfy accreditation criteria.
SECTION 9__.12. The heading to Section 39.182, Education Code, is amended to read as follows:
Sec. 39.182. COMPREHENSIVE [ANNUAL] REPORT.
SECTION 9__.13. Section 39.182(a), Education Code, is amended to read as follows:
(a) Not later than December 1 of each even-numbered year, the agency shall prepare and deliver to the governor, the lieutenant governor, the speaker of the house of representatives, each member of the legislature, the Legislative Budget Board, and the clerks of the standing committees of the senate and house of representatives with primary jurisdiction over the public school system a comprehensive report covering the preceding two school years [year] and containing;
(1) an evaluation of the achievements of the state educational program in relation to the statutory goals for the public education system under Section 4.002;
(2) an evaluation of the status of education in the state as reflected by the academic excellence indicators adopted under Section 39.051;
(3) a summary compilation of overall student performance on academic skills assessment instruments required by Section 39.023 with the number and percentage of students exempted from the administration of those instruments and the basis of the exemptions, aggregated by grade level, subject area, campus, and district, with appropriate interpretations and analysis, and disaggregated by race, ethnicity, gender, and socioeconomic status;
(4) a summary compilation of overall performance of students placed in an alternative education program established under Section 37.008 on academic skills assessment instruments required by Section 39.023 with the number of those students exempted from the administration of those instruments and the basis of the exemptions, aggregated by district, grade level, and subject area, with appropriate interpretations and analysis, and disaggregated by race, ethnicity, gender, and socioeconomic status;
(5) a summary compilation of overall performance of students at risk of dropping out of school, as defined by Section 29.081(d), on academic skills assessment instruments required by Section 39.023 with the number of those students exempted from the administration of those instruments and the basis of the exemptions, aggregated by district, grade level, and subject area, with appropriate interpretations and analysis, and disaggregated by race, ethnicity, gender, and socioeconomic status;
(6) an evaluation of the correlation between student grades and student performance on academic skills assessment instruments required by Section 39.023;
(7) a statement of the dropout rate of students in grade levels 7 through 12, expressed in the aggregate and by grade level, and a statement of the completion rates of students for grade levels 9 through 12;
(8) a statement of:
3724 78th Legislature — Regular Session 82nd Day
(A) the completion rate of students who enter grade level 9 and graduate not more than four years later;
(B) the completion rate of students who enter grade level 9 and graduate, including students who require more than four years to graduate;
(C) the completion rate of students who enter grade level 9 and not more than four years later receive a high school equivalency certificate;
(D) the completion rate of students who enter grade level 9 and receive a high school equivalency certificate, including students who require more than four years to receive a certificate; and
(E) the number and percentage of all students who have not been accounted for under Paragraph (A), (B), (C), or (D);
(9) a statement of the projected cross-sectional and longitudinal dropout rates for grade levels 9 through 12 for the next five years, assuming no state action is taken to reduce the dropout rate;
(10) a description of a systematic, measurable plan for reducing the projected cross-sectional and longitudinal dropout rates to five percent or less for the 1997-1998 school year;
(11) a summary of the information required by Section 29.083 regarding grade level retention of students and information concerning:
(A) the number and percentage of students retained; and
(B) the performance of retained students on assessment instruments required under Section 39.023(a);
(12) information, aggregated by district type and disaggregated by race, ethnicity, gender, and socioeconomic status, on:
(A) the number of students placed in an alternative education program established under Section 37.008;
(B) the average length of a student's placement in an alternative education program established under Section 37.008;
(C) the academic performance of students on assessment instruments required under Section 39.023(a) during the year preceding and during the year following placement in an alternative education program; and
(D) the dropout rates of students who have been placed in an alternative education program established under Section 37.008;
(13) a list of each school district or campus that does not satisfy performance standards, with an explanation of the actions taken by the commissioner to improve student performance in the district or campus and an evaluation of the results of those actions;
(14) an evaluation of the status of the curriculum taught in public schools, with recommendations for legislative changes necessary to improve or modify the curriculum required by Section 28.002;
(15) a description of all funds received by and each activity and expenditure of the agency;
(16) a summary and analysis of the compliance of school districts with administrative cost ratios set by the commissioner under Section 42.201, including any improvements and cost savings achieved by school districts;
Friday, May 30, 2003 SENATE JOURNAL 3725
(17) a summary of the effect of deregulation, including exemptions and waivers granted under Section 7.056 or 39.112;
(18) a statement of the total number and length of reports that school districts and school district employees must submit to the agency, identifying which reports are required by federal statute or rule, state statute, or agency rule, and a summary of the agency's efforts to reduce overall reporting requirements;
(19) a list of each school district that is not in compliance with state special education requirements, including:
(A) the period for which the district has not been in compliance;
(B) the manner in which the agency considered the district's failure to comply in determining the district's accreditation status; and
(C) an explanation of the actions taken by the commissioner to ensure compliance and an evaluation of the results of those actions;
(20) a comparison of the performance of open-enrollment charter schools and school districts on the academic excellence indicators specified in Section 39.051(b) and accountability measures adopted under Section 39.051(g), with a separately aggregated comparison of the performance of open-enrollment charter schools predominantly serving students at risk of dropping out of school, as defined by Section 29.081(d), with the performance of school districts; and
(21) any additional information considered important by the commissioner or the State Board of Education.
SECTION 9__.14. Sections 825.507(b) and (c), Government Code, are amended to read as follows:
(b) The retirement system may release records of a participant, including a participant to which Chapter 803 applies, to:
(1) the participant or the participant's attorney or guardian or another person who the executive director determines is acting on behalf of the participant;
(2) the executor or administrator of the deceased participant's estate, including information relating to the deceased participant's beneficiary;
(3) a spouse or former spouse of the participant if the executive director determines that the information is relevant to the spouse's or former spouse's interest in member accounts, benefits, or other amounts payable by the retirement system;
(4) an administrator, carrier, consultant, attorney, or agent acting on behalf of the retirement system;
(5) a governmental entity, an employer, or the designated agent of an employer, only to the extent the retirement system needs to share the information to perform the purposes of the retirement system, as determined by the executive director;
(6) a person authorized by the participant in writing to receive the information;
(7) a federal or state criminal law enforcement agency that requests a record for a law enforcement purpose;
(8) the attorney general to the extent necessary to enforce child support; [or]
(9) a party in response to a subpoena issued under applicable law if the executive director determines that the participant will have a reasonable opportunity to contest the subpoena;
3726 78th Legislature — Regular Session 82nd Day
(10) the commissioner of education or the commissioner's designee; or
(11) the State Board for Educator Certification or the board's designee.
(c) The records of a participant remain confidential after release to a person as authorized by this section. This section does not prevent the disclosure or confirmation, on an individual basis, of the status or identity of a participant as a member, former member, retiree, deceased member or retiree, beneficiary, or alternate payee of the retirement system. The release of records to a designee of the commissioner of education or State Board for Educator Certification under Subsection (b)(10) or (b)(11) is an intergovernmental transfer of information that does not violate the confidentiality of the information and does not waive any exception to public disclosure.
SECTION 9__.15. Sections 7.102(c)(1) and (c)(25), 8.051(b), 11.254(b), 12.107(b), 12.118, 12.119(c), 21.453, 29.123, 32.035, 45.208(e), Education Code, are repealed.
SECTION 9__.16. This article applies beginning with the 2003-2004 school year.
Floor Amendment No. 55
Amend CSSB 1952 in PART 9 of the bill, immediately preceding PART 10 (House committee report, page 229, between lines 26 and 27), by inserting the following appropriately numbered new ARTICLE:
ARTICLE _____. COMPLIANCE OF PUBLIC SCHOOL BILINGUAL
EDUCATION AND SPECIAL LANGUAGE PROGRAMS
SECTION _____. (a) Section 29.062, Education Code, is amended by amending Subsections (a) and (b) and adding Subsections (a-1) and (b-1) to read as follows:
(a) The legislature recognizes that compliance with this subchapter is an
imperative public necessity. Therefore, in accordance with the policy of the state, the
agency shall monitor compliance with all applicable state laws and rules by inspecting
each school district and open-enrollment charter school on-site at least every five
[three] years. The agency may combine the inspection of a district under this section
with the inspection of the district's special education program under Section 29.010.
(a-1) An on-site monitoring inspection under this section must include:
(1) review of each bilingual education and special language program performance indicator adopted by the agency;
(2) consideration of campus-based quality points or similar measures of program achievement; and
(3) a parent roundtable discussion or similar process to involve the parents of students enrolled in a program.
(b) The areas to be monitored in an on-site inspection must [shall] include:
(1) program content and design;
(2) program coverage
(3) identification procedures;
(4) classification procedures;
(5) staffing;
(6) learning materials;
(7) testing materials;
Friday, May 30, 2003 SENATE JOURNAL 3727
(8) reclassification of students for either entry into regular classes conducted
exclusively in English or reentry into a bilingual education or special education
program; [and]
(9) activities of the language proficiency assessment committees; and
(10) program evaluation methods.
(b-1) The commissioner shall electronically conduct a risk-based analysis of school district and open-enrollment charter school compliance with all applicable state laws and rules relating to bilingual education and special language programs. The commissioner shall also develop a system and standards for review of the analysis or use systems already available at the agency. The analysis must be designed to identify districts and schools that are at high risk of noncompliance and, as a result, require on-site monitoring of bilingual education or special language programs. If the risk-based analysis indicates that a district or school is at high risk of noncompliance, the district or school is entitled to an opportunity to respond to the commissioner's determination before on-site monitoring may be conducted. The district or school must respond not later than the 30th day after the date the commissioner notifies the district or school of the commissioner's determination. If the district's or school's response does not change the commissioner's determination that the district or school is at high risk of noncompliance or if the district or school does not respond in a timely manner, the commissioner shall order agency staff to conduct on-site monitoring of the district or school. The commissioner is not required to include in the analysis under this subsection an analysis of each area described by Subsection (b). In determining whether a district or school is at high risk of noncompliance, the commissioner shall consider:
(1) excessive parental complaints of noncompliance; and
(2) frequent district or school requests for waivers of program requirements.
(b) Subsection (a) of this section applies beginning with the 2004-2005 school year.
Floor Amendment No. 56
Amend CSSB 1952 by inserting the following appropriately numbered SECTION and renumbering the other SECTIONS of the bill accordingly:
SECTION _____. Subchapter A, Chapter 130, Education Code, is amended by adding Section 130.0012 to read as follows:
Sec. 130.0012. PILOT PROJECT: BACCALAUREATE DEGREE PROGRAMS. (a) The Texas Higher Education Coordinating Board shall establish a pilot project to examine the feasibility and effectiveness of authorizing public junior colleges to offer baccalaureate degree programs in the fields of applied science and applied technology. Participation in the pilot project does not otherwise alter the role and mission of a public junior college.
(b) The coordinating board shall operate the pilot project at the following public junior colleges:
(1) Brazosport College;
(2) El Centro College of the Dallas County Community College District;
(3) Midland College;
(4) North Harris Montgomery Community College District; and
(5) South Texas Community College.
3728 78th Legislature — Regular Session 82nd Day
(c) A public junior college participating in the pilot project must meet all applicable accreditation requirements of the Commission on Colleges of the Southern Association of Colleges and Schools.
(d) A public junior college participating in the pilot project may not offer more than five baccalaureate degree programs under the project at any time. The degree programs are subject to the continuing approval of the coordinating board. In determining what baccalaureate degree programs are to be offered, the junior college and the coordinating board shall consider:
(1) the need for the degree programs in the region served by the junior college;
(2) how those degree programs would complement the other programs and course offerings of the junior college;
(3) whether those degree programs would unnecessarily duplicate the degree programs offered by other institutions of higher education; and
(4) the ability of the junior college to support the program and the adequacy of the junior college's facilities, faculty, administration, libraries, and other resources.
(e) Each public junior college that offers a baccalaureate degree program under the pilot project must enter into an articulation agreement with one or more general academic teaching institutions to ensure that students enrolled in the degree program have an opportunity to complete the degree if the public junior college ceases to offer the degree program. The coordinating board may require a general academic teaching institution that offers a comparable degree program to enter into an articulation agreement with the public junior college as provided by this subsection.
(f) In its recommendations to the legislature relating to state funding for public junior colleges, the coordinating board shall recommend that a public junior college receive substantially the same state support for junior-level and senior-level courses offered under the pilot project as that provided to a general academic teaching institution for substantially similar courses. In determining the contact hours attributable to students enrolled in a junior-level or senior-level course offered under the pilot project used to determine a public junior college's proportionate share of state appropriations under Section 130.003, the coordinating board shall weigh those contact hours as necessary to provide the junior college the appropriate level of state support to the extent state funds for those courses are included in the appropriations. This subsection does not prohibit the legislature from directly appropriating state funds to support junior-level and senior-level courses offered under the pilot project.
(g) Each public junior college participating in the pilot project shall prepare a biennial report on the operation and effectiveness of the junior college's baccalaureate degree programs offered under the project and shall deliver a copy of the report to the coordinating board in the form and at the time determined by the coordinating board.
(h) Not later than January 1, 2009, the coordinating board shall prepare a progress report on the pilot project. Not later than January 1, 2011, the coordinating board shall prepare a report on the effectiveness of the pilot project, including any recommendations for legislative action regarding the offering of baccalaureate degree programs by public junior colleges. The coordinating board shall deliver a copy of
Friday, May 30, 2003 SENATE JOURNAL 3729
(i) Unless the authority to continue offering the baccalaureate degree programs is continued by the legislature, a public junior college may not:
(1) enroll a new student in a baccalaureate degree program under the pilot project after the 2011 fall semester;
(2) offer junior-level or senior-level courses for those degree programs after the 2015 fall semester, unless the coordinating board authorizes the college to offer those courses; or
(3) award a baccalaureate degree under the pilot project after the 2015 fall semester, unless the coordinating board approves the awarding of the degree.
(j) The coordinating board shall prescribe procedures to ensure that each public junior college that offers a degree program under the pilot project informs each student who enrolls in the degree program of:
(1) the nature of the pilot project, including the limited duration of the project; and
(2) the articulation agreement entered into under Subsection (e) for the student's degree program.
(k) This section expires January 1, 2020.
Floor Amendment No. 57
Amend CSSB 1952 (House committee report), in PART 10 of the bill, by inserting the following new ARTICLE in that PART, appropriately numbered (page 230, between lines 21 and 22):
ARTICLE ____. TEXAS SCHOOL EMPLOYEES UNIFORM GROUP
HEALTH COVERAGE ACT AND BENEFITS FOR SCHOOL EMPLOYEES
SECTION 10__.01. The heading to Article 3.50-8, Insurance Code, is amended to read as follows:
Art. 3.50-8. ACTIVE EMPLOYEE HEALTH REIMBURSEMENT
ARRANGEMENT [COVERAGE OR COMPENSATION SUPPLEMENTATION]
SECTION 10__.02. The heading to Section 1, Article 3.50-8, Insurance Code, is amended to read as follows:
Sec. 1. GENERAL DEFINITIONS.
SECTION 10__.03. Section 1, Article 3.50-8, Insurance Code, is amended by amending Subdivisions (1) and (2) and adding Subdivisions (1-a), (1-b), (1-c), (2-a), (2-b), (2-c), (2-d), (3-a), and (3-b) to read as follows:
(1) "Account" means a health reimbursement arrangement account
established under this article for a participating employee ["Cafeteria plan" means a
plan as defined and authorized by Section 125, Internal Revenue Code of 1986, and
its subsequent amendments].
(1-a) "Administering firm" means any entity designated by the trustee to administer any coverages, services, benefits, or requirements under this article and the trustee's rules adopted under this article.
(1-b) "Approved health benefit plan provider" means an entity approved by the trustee to offer health benefit plan coverage under this article.
(1-c) "Dependent" means:
3730 78th Legislature — Regular Session 82nd Day
(A) the spouse of a person;
(B) an unmarried child of the person if that child is under 25 years of age, including:
(i) an adopted child;
(ii) a stepchild, foster child, or other child who has a regular parent-child relationship with the person; or
(iii) a recognized natural child; or
(C) the person's recognized natural child, adopted child, foster child, stepchild, or other child who is in a regular parent-child relationship with the participating employee and who lives with or has his or her care provided by the person on a regular basis regardless of the child's age if the child is mentally retarded or physically incapacitated to an extent that the child is dependent on the person for care or support, as determined by the trustee.
(2) "Employee" means a participating member of the Teacher Retirement System of Texas who:
(A) is employed by a school district, other educational district whose
employees are members of the Teacher Retirement System of Texas, participating
charter school, or regional education service center; [and]
(B) is not a retiree covered under the Texas Public School Retired Employees Group Insurance Program established under Article 3.50-4 of this code;
(C) is not covered by a group insurance program under Chapter 1551 or 1601 of this code; and
(D) is not an individual performing personal services for a participating entity as an independent contractor.
(2-a) "Health benefit plan" means a plan designed to provide, pay for, or reimburse expenses for health care services. The term includes:
(A) an insurance policy, contract, or certificate;
(B) a medical or hospital service agreement; and
(C) a similar arrangement, including coverage through a health maintenance organization operating under Chapter 843.
(2-b) "Health benefit plan issuer" means an entity that provides health benefit plan coverage in this state. The term includes:
(A) an insurance company authorized to do business in this state;
(B) a group hospital service corporation operating under Chapter 842 of this code;
(C) a health maintenance organization operating under Chapter 843 of this code;
(D) a stipulated premium insurance company operating under Chapter 884 of this code;
(E) a multiple employer welfare arrangement subject to Chapter 846 of this code;
(F) an approved nonprofit health corporation that holds a certificate of authority issued under Chapter 844 of this code; and
(G) any other entity providing a plan of health insurance or health benefits coverage subject to state regulation by the department.
(2-c) "Health reimbursement arrangement" is a health benefit plan that:
Friday, May 30, 2003 SENATE JOURNAL 3731
(A) is paid for solely by the employer;
(B) is not provided under a salary reduction election;
(C) reimburses a participant for a qualified health care expense incurred by the participant or the participant's dependent;
(D) provides reimbursements up to a maximum dollar amount at the end of a coverage period; and
(E) provides that any unused portion of the maximum dollar amount at the end of a coverage period is carried forward to increase the maximum reimbursement amount in subsequent coverage periods.
(2-d) "Participant" means a person enrolled in the program.
(3-a) "Program" means the health reimbursement arrangement program established under this article.
(3-b) "Qualified health care expense" means an expense paid by an employee for medical care, as defined by Section 213(d), Internal Revenue Code of 1986, and its subsequent amendments, for the employee or the employee's dependents, as defined by Section 152, Internal Revenue Code of 1986, and its subsequent amendments.
SECTION 10__.04. Article 3.50-8, Insurance Code, is amended by adding Section 1A to read as follows:
Sec. 1A. DEFINITION OF EMPLOYER. (a) For purposes of qualification under federal law of a health reimbursement arrangement established under this article, "employer" means this state and a school district, another educational district whose employees are members of the Teacher Retirement System of Texas, a participating charter school, or a regional education service center.
(b) This article does not make an employee an employee of this state for any purpose other than the limited purpose described by Subsection (a) of this section.
SECTION 10__.05. Section 2, Article 3.50-8, Insurance Code, is amended to read as follows:
Sec. 2. ACTIVE EMPLOYEE HEALTH REIMBURSEMENT
ARRANGEMENT PROGRAM; STATE CONTRIBUTION [COVERAGE OR
COMPENSATION SUPPLEMENTATION]. (a) For each employee, the state shall
annually contribute $1,000 or the amount specified in the General Appropriations Act
to the health reimbursement arrangement account established for that employee for the
payment of qualified health care expenses.
(b) Each year, the trustee shall contribute to the health reimbursement
arrangement account of each employee of [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 the
amount to which the employee is entitled under Subsection (a) of this section [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]. The contributions shall be made in equal monthly
installments.
3732 78th Legislature — Regular Session 82nd Day
(c) Each employee shall direct the expenditure of the amount of the state contribution made under this section and that is allocated to the employee in accordance with the General Appropriations Act and this article.
(d) Money described by Subsection (c) of this section may be used by an employee only in accordance with this article for the employee and the employee's dependents for health benefit plan coverage offered by approved health benefit plan providers and for other qualified health care expenses.
(e) Any funds in a cafeteria plan authorized by Section 125, Internal Revenue
Code of 1986, and its subsequent amendments, and described by Section 3(a) of this
article, for an employee who received the funds under this article, as this article
existed immediately before September 1, 2003, that were designated by the employee
for health care expenses and are unspent as of September 1, 2003, must be spent by
the employee for qualified health care expenses before the employee may spend any
funds from the health reimbursement arrangement account established for that
employee under this section. [(b) All funds received by a school district, other
educational district, participating charter school, or regional education service center
under this article are held in trust for the benefit of the active employees on whose
behalf the district, school, or service center received the funds.
[(c)iiThe trustee shall distribute funds under this article in equal monthly
installments. The trustee is entitled to recover from a school district, other educational
district, participating charter school, or regional education service center any amount
distributed under this article to which the district, school, or service center was not
entitled.
[(d)iiA determination by the trustee under this section is final and may not be
appealed.]
SECTION 10__.06.iiArticle 3.50-8, Insurance Code, is amended by adding Section 2A to read as follows:
Sec. 2A.iiPROGRAM FUNDING STRUCTURE; RULES.ii(a)iiThe trustee, in consultation with the comptroller, shall by rule develop a funding structure that:
(1)iiimplements Section 2 of this article in accordance with this article;
(2)iipermits an employee to carry over money allocated to the employee throughout the period the employee is eligible to participate in the program; and
(3)iiensures, to the extent feasible and consistent with this chapter, favorable federal tax treatment to the employee.
(b)iiThe funding structure shall use a health reimbursement arrangement established in a manner compatible with federal tax law.
(c)iiTo implement this section, the comptroller shall, as requested by the trustee:
(1)iiestablish separate accounts attributable to individual participating employees within the Texas school employees uniform group coverage trust fund; or
(2)iitransfer funds from the Texas school employees uniform group coverage trust fund to trust accounts outside the fund in the custody of the comptroller established for the benefit of employees.
Friday, May 30, 2003 SENATE JOURNAL 3733
(d)iiOn an employee's separation from service with an entity described by Section 2(b) of this article, the employee may continue to use for qualified health care expenses any money carried over by the employee under Subsection (a)(2) of this section that was allocated to the employee under this article and was not spent before the effective date of the separation.
SECTION 10__.07.iiSection 4, Article 3.50-8, Insurance Code, is amended to read as follows:
Sec. 4.i GENERAL RULES AND ADMINISTRATION; CONTRACT
AUTHORITY. (a) The trustee shall [may] adopt rules to implement this article.
(b)iiThe trustee may contract with an independent and experienced group insurance consultant or actuary for advice and counsel in implementing and administering the program.
(c)iiThe trustee may enter into interagency contracts with any agency of this state, including the Employees Retirement System of Texas and the department, for the purpose of assistance in implementing this article.
(d)iiThe trustee may not directly administer health benefit plan coverages made available under the program and may not provide those coverages on a self-funded basis.
(e)iiThe trustee may not establish, approve, or limit premium rates for health benefit plan coverages made available under the program.
(f)iiNotwithstanding Section 2 of this article, the trustee may pay all administrative costs incurred by the trustee in operating the program from the contributions made by the state under Section 2(a) of this article.
SECTION 10__.08.iiArticle 3.50-8, Insurance Code, is amended by adding Sections 4A-4F to read as follows:
Sec. 4A.iiCOMPETITIVE BIDDING REQUIREMENTS.ii(a)iiThe trustee may, on a competitive bid basis, contract with an entity to act for the trustee as an independent administrator or manager of the coverages, services, and benefits authorized under this article.
(b)iiThe entity must be a qualified, experienced firm of group insurance specialists or an administering firm and shall assist the trustee in ensuring the proper administration of this article and the coverages, services, and benefits authorized under this chapter.
Sec. 4B.iiCONTRACT AWARD; CONSIDERATIONS.ii(a)iiIn awarding a contract under this article, the trustee is not required to select the lowest bid and may consider also any relevant criteria, including the bidder's;
(1)iiability to service contracts;
(2)i past experience, including experience with the operation of health reimbursement arrangements; and
(3)iifinancial stability.
(b)iiIf the trustee awards a contract to a bidder whose bid deviates from that advertised, the trustee shall record the deviation and fully justify the reason for the deviation in the minutes of the next trustee meeting.
3734 78th Legislature — Regular Session 82nd Day
Sec. 4C.iiCERTIFICATE OF COVERAGE.iiAn approved health benefit plan provider shall issue, to each employee purchasing health benefit plan coverage from the health benefit plan provider under the program, a certificate of coverage that states:
(1)iithe benefits to which the participant is entitled;
(2)iito whom the benefits are payable;
(3)iito whom a claim must be submitted; and
(4)iithe provisions of the plan document, in summary form, that principally affect the participant.
Sec. 4D.iiISSUER RECORDS.iiAny health benefit plan issuer providing coverages to participants in the program shall:
(1)iifurnish any reasonable report the trustee determines is necessary to enable the trustee to perform its functions under this article; and
(2)iipermit the trustee and a representative of the state auditor to examine records of the health benefit plan issuer as necessary to accomplish the purposes of this article.
Sec. 4E.iiCONFIDENTIALITY OF PARTICIPANT RECORDS.ii(a)iiThe records of a participant in the program in the custody of the trustee, or of an administrator or health benefit plan issuer acting under the program, are confidential and not subject to disclosure and are exempt from the public access provisions of Chapter 552, Government Code, except as provided by this section.
(b)iiThe trustee may release the records to:
(1)iian administrator, health benefit plan issuer, agent, or attorney acting under the program;
(2)i another governmental entity;
(3)iia medical provider of the participant to accomplish the purposes of this article; or
(4)iia party in response to a subpoena issued under applicable law.
Sec. 4F.i EQUITABILITY IN NEGOTIATED RATES.ii(a)iiA health benefit plan used to provide coverage under the program must be designed to ensure that an employee who purchases coverage under the health benefit plan through the employee's health reimbursement arrangement account is entitled to pay a physician or other health care provider for services provided to the employee that are not reimbursed from the account at the same rate negotiated with the physician or other health care provider by the approved health benefit plan provider for provision of those services under the plan.
(b)iiSubsection (a) of this section applies to medical services, dental services, and vision care services.
SECTION 10__.09.iiSection 822.201(c), Government Code, is amended to read as follows:
(c)iiExcluded from salary and wages are:
(1)iiexpense payments;
(2)iiallowances;
(3)iipayments for unused vacation or sick leave;
(4)iimaintenance or other nonmonetary compensation;
(5)iifringe benefits;
Friday, May 30, 2003 SENATE JOURNAL 3735
(6)iideferred compensation other than as provided by Subsection (b)(3);
(7)iicompensation that is not made pursuant to a valid employment agreement;
(8)iipayments received by an employee in a school year that exceed $5,000 for teaching a driver education and traffic safety course that is conducted outside regular classroom hours;
(9)iithe benefit replacement pay a person earns as a result of a payment made under Subchapter B or C, Chapter 661;
(10)iicontributions to a health reimbursement arrangement account
[supplemental compensation] received by an employee under Article 3.50-8,
Insurance Code; and
(11)iiany compensation not described by [in] Subsection (b).
SECTION 10__.10.iiSections 3 and 5, Article 3.50-8, Insurance Code, are repealed.
SECTION 10__.11.ii(a)i The Teacher Retirement System of Texas, in consultation with the comptroller, shall develop the funding structure required by Section 2A, Article 3.50-8, Insurance Code, as added by this ARTICLE of this PART, and shall take necessary action to implement the health reimbursement arrangement program in accordance with Article 3.50-8, Insurance Code, as amended by this ARTICLE of this PART, not later than September 1, 2004.
(b)iiNotwithstanding any other law, until September 1, 2004, the Teacher Retirement System of Texas may pay for administrative expenses incurred by the system in developing the health care reimbursement arrangement program from funds received by the system in fiscal year 2004 under Article 3.50-8, Insurance Code, for operation of the employee health coverage and compensation supplementation program.
SECTION 10__.12.ii(a)iiThe Teacher Retirement System of Texas shall continue to operate the medical savings account program established under Article 3.50-8, Insurance Code, as added by Chapter 1187, Acts of the 77th Legislature, Regular Session, 2001, until September 1, 2004.
(b)iiAny unspent funds in a medical savings account established for an employee under Article 3.50-8, Insurance Code, as that section existed before amendment by this ARTICLE, are transferred to the health reimbursement arrangement account established for that employee under Article 3.50-8, Insurance Code, as amended by this ARTICLE, effective September 1, 2004.
SECTION 10__.13.iiNot later than July 31, 2004, the Teacher Retirement System of Texas shall provide written information to school districts eligible to participate in the health reimbursement arrangement program under Article 3.50-8, Insurance Code, as amended by this ARTICLE of this PART, that provides a general description of the requirements for such a program as adopted under Article 3.50-8, Insurance Code, as amended by this ARTICLE of this PART.
SECTION 10__.14.iiDuring the initial implementation of Article 3.50-8, Insurance Code, as amended by this ARTICLE of this PART, and notwithstanding any bidding requirements or other requirements set forth in Article 3.50-8, Insurance Code, as added by Chapter 1187, Acts of the 77th Legislature, Regular Session, 2001, the Teacher Retirement System of Texas may amend any agreement in effect on
3736 78th Legislature — Regular Session 82nd Day
SECTION 10__.15.iiNotwithstanding Article 3.50-8, Insurance Code, the state shall pay the state contribution for active employee health coverage or supplemental compensation authorized under Section 2, Article 3.50-8, Insurance Code, for the last month of state fiscal year 2005 not earlier than the first day of the first month of state fiscal year 2006.
SECTION 10__.16.iiEffective September 1, 2003, the comptroller of public accounts shall transfer $42 million from the Texas school employees uniform group coverage trust fund established under Section 8, Article 3.50-7, Insurance Code, to the retired school employees group insurance fund described by Subchapter G, Chapter 1575, Insurance Code, to compensate the retired school employees group insurance fund for money transferred from that fund under Section 4.01, Chapter 1187, Acts of the 77th Legislature, Regular Session, 2001.
SECTION 10__.17.ii(a)iiExcept as provided by Subsection (b) of this section, this ARTICLE takes effect September 1, 2003.
(b)iiSections 10__.09 and 10__.10 of this ARTICLE take effect Septemberi1, 2004, and apply beginning with the 2004-2005 school year.
Floor Amendment No. 58
Amend CSSB 1952 by adding the following appropriately numbered ARTICLE to PART 9 of the bill and renumbering subsequent ARTICLES of PART 9 of the bill accordingly:
ARTICLE ____.iiHIGHER EDUCATION PARTNERSHIPS
SECTIONi9.01.iiThe heading to Subchapter N, Chapter 51, Education Code, is amended to read as follows:
SUBCHAPTER N. PARTNERSHIPS BETWEEN COMMUNITY/JUNIOR
COLLEGES AND OTHER INSTITUTIONS OF HIGHER EDUCATION
[UPPER-LEVEL UNIVERSITIES OR CENTERS]
SECTIONi9.02.iiSection 51.661, Education Code, is amended to read as follows:
Sec.i51.661.iiPURPOSE. The purpose of this subchapter is to encourage
partnerships between public community/junior colleges and other institutions of
higher education that [upper-level universities or centers which] are located in the
same state uniform service region as adopted by the Texas Higher Education
Coordinating Board in order to improve the continuity, quality, and efficiency of
educational programs and services.
SECTIONi9.03.iiSubchapter N, Chapter 51, Education Code, is amended by adding Section 51.6615 to read as follows:
Sec.i51.6615.iiDEFINITION. In this section, "institution of higher education" has the meaning assigned by Section 61.003.
SECTIONi9.04.iiSection 51.662, Education Code, is amended to read as follows:
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Sec.i51.662.iiPARTNERSHIP AGREEMENTS. With the approval of the Texas
Higher Education Coordinating Board, the governing boards of a public
community/junior college and another institution of higher education that [an
upper-level university or center which] are located in the same state uniform service
region as adopted by the coordinating board may enter into a partnership agreement
designed to coordinate the management and operations of the institutions. The
agreements shall in no way abrogate the powers and duties of the boards with regard
to the governance of their respective institutions.
SECTIONi9.05.iiSection 51.666, Education Code, is amended to read as follows:
Sec.i51.666.iiFACILITIES. A participating institution of higher education
[upper-level university or center] may lease facilities from or to the community/junior
college for administrative and instructional purposes. Community/junior college
facilities may not be transferred to the other participating institution of higher
education [university or center] and may not be included in the space inventory of the
other participating institution of higher education [university or center] for formula
funding purposes.
SECTIONi9.06.iiSection 51.667, Education Code, is amended to read as follows:
Sec.i51.667.iiSTATE FUNDING. The community/junior college shall receive
state appropriations on the same formula basis as other community/junior colleges,
and the other participating institution of higher education [university or center] shall
receive state appropriations on the same formula basis as other similar institutions of
higher education [upper-level senior colleges and universities].
SECTIONi9.07.iiSection 51.668, Education Code, is amended to read as follows:
Sec.i51.668.iiCONTINUING RESPONSIBILITIES. A participating
community/junior college must continue to provide programs and services
enumerated in Section 130.003(e) [Subsection (e) of Section 130.003 of this code].
The role [rule] and scope of the other participating institution of higher education
[university or center] are subject to approval by the coordinating board.
Floor Amendment No. 62
Amend CSSB 1952 in SECTION 13A.01 of the bill, in proposed Subsection (c), Section 51.21, Tax Code (House committee printing page 233, line 13), at the end of the subsection, by adding the following:
In determining whether the local value for a school district is valid, the commissioner shall use a margin of error that does not exceed five percent unless the commissioner determines that the size of the sample of properties necessary to make the determination makes the use of such a margin of error not feasible, in which case the commissioner may use a larger margin of error.
Floor Amendment No. 63
Amend CSSB 1952 as follows:
(1)iiIn SECTION 13A.01 of the bill, in proposed Subsection (g), Section 51.21, Tax Code (House committee printing page 236, line 18), strike "2004" and substitute "2003".
3738 78th Legislature — Regular Session 82nd Day
(2)iiIn SECTION 13A.01 of the bill, in proposed Section 51.21, Tax Code, between Subsections (g) and (h) (House Committee Printing page 236, between lines 26 and 27), insert the following:
(g-1)iiIf the comptroller determines in the annual study conducted for the year 2002 that the taxable value of a school district is the local value because the local value is invalid and exceeds the state value, the commissioner of education shall compute the amount by which the funding under Chapter 42, Education Code, of the school district is reduced for the 2003-2004 school year because of the use of local value rather than state value as taxable value. The commissioner of education shall allocate the amount of the reduction for that school year to the school districts that receive funding under Chapter 42, Education Code, whose taxable value for 2002 is the state value, and whose maintenance and operations tax rate for 2002 exceeds $1.42 on the $100 valuation of taxable property. The allocation shall be made in proportion to the amount of funding under Chapter 42, Education Code, that each of those school districts would otherwise have received in that year. This subsection expires September 30, 2005.
Floor Amendment No. 64
Amend CSSB 1952 by adding the following new PART to the bill and renumbering the subsequent PARTS accordingly:
PART ____. INTERSTATE COMPACT FOR JUVENILES
ARTICLE ____. INTERSTATE COMPACT FOR JUVENILES
SECTION ____. Chapter 60, Family Code, is amended by adding Section 60.010 to enact the Interstate Compact for Juveniles and to read as follows:
Sec.i60.010.iiINTERSTATE COMPACT FOR JUVENILES
ARTICLE I
PURPOSE
The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents, and status offenders who are on probation or parole and who have absconded, escaped, or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that congress, by enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.
It is the purpose of this compact, through means of joint and cooperative action among the compacting states to: (A) ensure that the juveniles who are moved under this compact to another state for probation or parole supervision and services are governed in the receiving state by the same standards that apply to juveniles receiving such supervision and services in the receiving state; (B) ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected and balanced with the juvenile's and the juvenile's family's best interests and welfare when an interstate movement is under consideration; (C) return juveniles who have run away, absconded, or escaped from supervision or control or have been accused of an offense to the state requesting
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ARTICLE II
DEFINITIONS
As used in this compact, unless the context clearly requires a different construction:
A. "Bylaws" means those bylaws established by the Interstate Commission for its governance or for directing or controlling the Interstate Commission's actions or conduct.
B. "Compact administrator" means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact and to the rules adopted by the Interstate Commission under this compact.
C. "Compacting state" means any state which has enacted the enabling legislation for this compact.
3740 78th Legislature — Regular Session 82nd Day
D. "Commissioner" means the voting representative of each compacting state appointed pursuant to Article III of this compact.
E. "Court" means any court having jurisdiction over delinquent, neglected, or dependent children.
F. "Deputy compact administrator" means the individual, if any, in each compacting state appointed to act on behalf of a compact administrator pursuant to the terms of this compact, responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact and to the rules adopted by the Interstate Commission under this compact.
G. "Interstate Commission" means the Interstate Commission for Juveniles created by Article III of this compact.
H. "Juvenile" means any person defined as a juvenile in any member state or by the rules of the Interstate Commission, including:
(1)iiAccused Delinquent - a person charged with an offense that, if committed by an adult, would be a criminal offense;
(2)iiAdjudicated Delinquent - a person found to have committed an offense that, if committed by an adult, would be a criminal offense;
(3)iiAccused Status Offender - a person charged with an offense that would not be a criminal offense if committed by an adult;
(4)iiAdjudicated Status Offender - a person found to have committed an offense that would not be a criminal offense if committed by an adult; and
(5)iiNonoffender - a person in need of supervision who has not been accused or adjudicated a status offender or delinquent.
I. "Noncompacting state" means any state which has not enacted the enabling legislation for this compact.
J. "Probation or parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states.
K. "Rule" means a written statement by the Interstate Commission promulgated pursuant to Article VI of this compact that is of general applicability, implements, interprets, or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the Interstate Commission, and has the force and effect of statutory law in a compacting state, and includes the amendment, repeal, or suspension of an existing rule.
L. "State" means a state of the United States, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands.
ARTICLE III
INTERSTATE COMMISSION FOR JUVENILES
A. The compacting states hereby create the Interstate Commission for Juveniles. The Interstate Commission shall be a body corporate and joint agency of the compacting states. The commission shall have all the responsibilities, powers, and duties set forth herein, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
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B. The Interstate Commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state. The commissioner shall be the compact administrator, deputy compact administrator, or designee from that state who shall serve on the Interstate Commission in such capacity under or pursuant to the applicable law of the compacting state.
C. In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners, but who are members of interested organizations. Such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, Interstate Compact for Adult Offender Supervision, Interstate Compact for the Placement of Children, juvenile justice and juvenile corrections officials, and crime victims. All noncommissioner members of the Interstate Commission shall be ex officio (nonvoting) members. The Interstate Commission may provide in its bylaws for such additional ex officio (nonvoting) members, including members of other national organizations, in such numbers as shall be determined by the commission.
D. Each compacting state represented at any meeting of the Interstate Commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission.
E. The Interstate Commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
F. The Interstate Commission shall establish an executive committee, which shall include commission officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rulemaking or amendment to the compact. The executive committee shall oversee the day-to-day activities of the administration of the compact managed by an executive director and Interstate Commission staff; administers enforcement and compliance with the provisions of the compact, its bylaws and rules, and performs such other duties as directed by the Interstate Commission or set forth in the bylaws.
G. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.
3742 78th Legislature — Regular Session 82nd Day
H. The Interstate Commission's bylaws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.
I. Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission and any of its committees may close a meeting to the public when it determines by two-thirds vote that an open meeting would be likely to:
1. Relate solely to the Interstate Commission's internal personnel practices and procedures;
2. Disclose matters specifically exempted from disclosure by statute;
3. Disclose trade secrets or commercial or financial information which is privileged or confidential;
4. Involve accusing any person of a crime or formally censuring any person;
5. Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
6. Disclose investigative records compiled for law enforcement purposes;
7. Disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity;
8. Disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or
9. Specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or other legal proceeding.
J. For every meeting closed pursuant to this provision, the Interstate Commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
K. The Interstate Commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules which shall specify the data to be collected, the means of collection and data exchange, and reporting requirements. Such methods of data collection, exchange, and reporting shall insofar as is reasonably possible conform to up-to-date technology and coordinate the Interstate Commission's information functions with the appropriate repository of records.
ARTICLE IV
POWERS AND DUTIES OF THE INTERSTATE COMMISSION
The commission shall have the following powers and duties:
1. To provide for dispute resolution among compacting states.
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2. To promulgate rules to effect the purposes and obligations as enumerated in this compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact.
3. To oversee, supervise, and coordinate the interstate movement of juveniles subject to the terms of this compact and any bylaws adopted and rules promulgated by the Interstate Commission.
4. To enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means, including but not limited to the use of judicial process.
5. To establish and maintain offices which shall be located within one or more of the compacting states.
6. To purchase and maintain insurance and bonds.
7. To borrow, accept, hire, or contract for services of personnel.
8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Article III of this compact, which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder.
9. To elect or appoint officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties, and determine their qualifications, and to establish the Interstate Commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation, and qualifications of personnel.
10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of same.
11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, whether real, personal, or mixed.
12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, whether real, personal, or mixed.
13. To establish a budget and make expenditures and levy dues as provided in Article VIII of this compact.
14. To sue and be sued.
15. To adopt a seal and bylaws governing the management and operation of the Interstate Commission.
16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
17. To report annually to the legislatures, governors, and judiciary of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.
18. To coordinate education, training, and public awareness regarding the interstate movement of juveniles for officials involved in such activity.
19. To establish uniform standards of the reporting, collecting, and exchanging of data.
3744 78th Legislature — Regular Session 82nd Day
20. The Interstate Commission shall maintain its corporate books and records in accordance with the bylaws.
ARTICLE V
ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION
Sec. A. Bylaws
1. The Interstate Commission shall, by a majority of the members present and voting, within 12 months of the first Interstate Commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:
a. Establishing the fiscal year of the Interstate Commission;
b. Establishing an executive committee and such other committees as may be necessary;
c. Providing for the establishment of committees governing any general or specific delegation of any authority or function of the Interstate Commission;
d. Providing reasonable procedures for calling and conducting meetings of the Interstate Commission and ensuring reasonable notice of each such meeting;
e. Establishing the titles and responsibilities of the officers of the Interstate Commission;
f. Providing a mechanism for concluding the operations of the Interstate Commission and the return of any surplus funds that may exist upon the termination of the compact after the payment or reserving of all of its debts and obligations;
g. Providing start-up rules for initial administration of the compact; and
h. Establishing standards and procedures for compliance and technical assistance in carrying out the compact.
Sec. B. Officers and Staff
1. The Interstate Commission shall, by a majority of the members, elect annually from among its members a chairperson and a vice chairperson, each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson or, in the chairperson's absence or disability, the vice chairperson shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission, provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.
2. The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions, and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, but shall not be a member and shall hire and supervise such other staff as may be authorized by the Interstate Commission.
Sec. C. Qualified Immunity, Defense, and Indemnification
1. The Interstate Commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that
Friday, May 30, 2003 SENATE JOURNAL 3745
2. The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees, and agents. Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or wilful and wanton misconduct of any such person.
3. The Interstate Commission shall defend the executive director or the employees or representatives of the Interstate Commission and, subject to the approval of the attorney general of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or wilful and wanton misconduct on the part of such person.
4. The Interstate Commission shall indemnify and hold the commissioner of a compacting state, or the commissioner's representatives or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or wilful and wanton misconduct on the part of such persons.
ARTICLE VI
RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION
A. The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.
B. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Vol. 15, p. 1 (2000), or such other administrative procedures act, as the Interstate Commission deems appropriate consistent with due process requirements under the United States Constitution as now or hereafter interpreted by the United States Supreme Court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the Interstate Commission.
C. When promulgating a rule, the Interstate Commission shall, at a minimum:
3746 78th Legislature — Regular Session 82nd Day
1. Publish the proposed rule's entire text stating the reason or reasons for that proposed rule;
2. Allow and invite persons to submit written data, facts, opinions, and arguments, which information shall be added to the record and be made publicly available;
3. Provide an opportunity for an informal hearing, if petitioned by 10 or more persons; and
4. Promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties.
D. Allow, not later than 60 days after a rule is promulgated, any interested person to file a petition in the United States District Court for the District of Columbia or in the federal district court where the Interstate Commission's principal office is located for judicial review of the rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act.
E. If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any compacting state.
F. The existing rules governing the operation of the Interstate Compact on Juveniles superceded by this Act shall be null and void 12 months after the first meeting of the Interstate Commission created under this compact.
G. Upon determination by the Interstate Commission that an emergency exists, the Interstate Commission may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, but no later than 90 days after the effective date of the emergency rule.
ARTICLE VII
OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION
BY THE INTERSTATE COMMISSION
Sec. A. Oversight
1. The Interstate Commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states.
2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers,
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Sec. B. Dispute Resolution
1. The compacting states shall report to the Interstate Commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the provisions of the compact and its bylaws and rules.
2. The Interstate Commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and between compacting and noncompacting states. The Interstate Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
3. The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in Article X of this compact.
ARTICLE VIII
FINANCE
A. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.
B. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state. The Interstate Commission shall promulgate a rule binding upon all compacting states that governs said assessment.
C. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same, nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
D. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.
ARTICLE IX
COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT
A. Any state, as defined in Article II of this compact, is eligible to become a compacting state.
3748 78th Legislature — Regular Session 82nd Day
B. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than 35 of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the 35th jurisdiction. Thereafter, the compact shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state. The governors of noncompacting states or their designees shall be invited to participate in Interstate Commission activities on a nonvoting basis prior to adoption of the compact by all states.
C. The Interstate Commission may propose amendments to the compact for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.
ARTICLE X
WITHDRAWAL, DEFAULT, TERMINATION, AND JUDICIAL ENFORCEMENT
Sec. A. Withdrawal
1. Once effective, the compact shall continue in force and remain binding upon each and every compacting state, provided that a compacting state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.
2. The effective date of withdrawal is the effective date of the repeal.
3. The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within 60 days of its receipt thereof.
4. The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.
5. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.
Sec. B. Technical Assistance, Fines, Suspension, Termination, and Default
1. If the Interstate Commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the bylaws or duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:
a. Remedial training and technical assistance as directed by the Interstate Commission;
b. Alternative dispute resolution;
c. Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission; and
d. Suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted and the Interstate Commission has determined that the offending state is in default. Immediate notice of suspension shall be given by the Interstate Commission to the governor, the chief justice or the chief judicial officer
Friday, May 30, 2003 SENATE JOURNAL 3749
2. Within 60 days of the effective date of termination of a defaulting state, the Interstate Commission shall notify the governor, the chief justice or chief judicial officer of the state, and the majority and minority leaders of the defaulting state's legislature of such termination.
3. The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.
4. The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.
5. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.
Sec. C. Judicial Enforcement
The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules and bylaws, against any compacting state in default. In the event judicial enforcement is necessary the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.
Sec. D. Dissolution of Compact
1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the compact to one compacting state.
2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and any surplus funds shall be distributed in accordance with the bylaws.
3750 78th Legislature — Regular Session 82nd Day
ARTICLE XI
SEVERABILITY AND CONSTRUCTION
A. The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
B. The provisions of this compact shall be liberally construed to effectuate its purposes.
ARTICLE XII
BINDING EFFECT OF COMPACT AND OTHER LAWS
Sec. A. Other Laws
1. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.
2. All compacting states' laws other than state constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.
Sec. B. Binding Effect of the Compact
1. All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Interstate Commission, are binding upon the compacting states.
2. All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.
3. Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation.
4. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the time this compact becomes effective.
ARTICLE ____. CONFORMING AMENDMENTS
SECTION ____. Sections 60.001 and 60.009, Family Code, are amended to read as follows:
Sec.i60.001.iiDEFINITIONS [SHORT TITLE]. In this [This] chapter:
(1)ii"Commission" means the Interstate Commission for Juveniles.
(2)ii"Compact" means the Interstate Compact for Juveniles.
(3)ii"Compact administrator" has the meaning assigned by Article II of the
compact [may be cited as the Uniform Interstate Compact on Juveniles].
Sec.i60.009.iiADDITIONAL PROCEDURES NOT PRECLUDED. In addition
to any [the] procedures developed under [provided in Articles IV and VI of] the
compact for the return of a runaway juvenile, the particular states, the juvenile, or his
parents, the courts, or other legal custodian involved may agree upon and adopt any
plan or procedure legally authorized under the laws of this state and the other
respective party states for the return of the runaway juvenile.
Friday, May 30, 2003 SENATE JOURNAL 3751
SECTION ____. Chapter 60, Family Code, is amended by adding Sections 60.011 and 60.012 to read as follows:
Sec.i60.011.iiEFFECT OF TEXAS LAWS. If the laws of this state conflict with the compact, the compact controls, except that in the event of a conflict between the compact and the Texas Constitution, as determined by the courts of this state, the Texas Constitution controls.
Sec.i60.012.iiLIABILITIES FOR CERTAIN COMMISSION AGENTS. The compact administrator and each member, officer, executive director, employee, or agent of the commission acting within the scope of the person's employment or duties is, for the purpose of acts or omissions occurring within this state, entitled to the same protections under Chapter 104, Civil Practice and Remedies Code, as an employee, a member of the governing board, or any other officer of a state agency, institution, or department.
SECTION ____. Section 54.10(a), Family Code, is amended to read as follows:
(a)iiExcept as provided by Subsection (e), a hearing under Section 54.03, 54.04,
or 54.05, including a jury trial, a hearing under Chapter 55, including a jury trial, or a
hearing under [Article IV, Article V, and Article VI of] the [Uniform] Interstate
Compact for [on] Juveniles (Chapter 60) may be held by a referee appointed in
accordance with Section 51.04(g) or a master appointed under Chapter 54,
Government Code, provided:
(1)iithe parties have been informed by the referee or master that they are entitled to have the hearing before the juvenile court judge; and
(2)iiafter each party is given an opportunity to object, no party objects to holding the hearing before the referee or master.
ARTICLE ____. TRANSITION, REPEALER, AND EFFECTIVE DATE
SECTION ____. The governor shall publish notice of the implementation of the Interstate Compact for Juveniles in the Texas Register not later than the 30th day after the date the compact becomes effective under Article IX of the compact.
SECTION ____. Sections 60.002, 60.003, and 60.004, Family Code, are repealed.
SECTION ____. (a) Except as provided by Subsection (b) of this section, all provisions of law in this Act relating to the Interstate Compact for Juveniles take effect on the day on which the Interstate Compact for Juveniles takes effect, which according to the terms of the compact is the later of July 1, 2004, or the day on which the compact is enacted into law by the 35th state, as defined by the compact.
(b)iiArticle 1 of this Part takes effect September 1, 2003.
Floor Amendment No. 66
Amend CSSB 1952 (House committee report) by adding the following appropriately numbered article to Part 9 of the bill:
ARTICLE ____. WAIVERS FOR SCHOOL DISTRICTS
SECTION __.01. Section 7.056, Education Code, is amended by adding Subsection (h) to read as follows:
(h) The commissioner may not grant a waiver with regard to a school start date under this section if granting the request would increase non-instructional costs for the requesting school district or campus.
3752 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 67
Amend CSSB 1952 by inserting the following new SECTIONS, appropriately numbered, and renumbering the other SECTIONS of the bill accordingly:
SECTIONi____.iiSubchapter A, Chapter 531, Government Code, is amended by adding Section 531.017 to read as follows:
Sec.i531.017.iiCERTAIN CONTRACTS FOR HEALTH CARE PURPOSES; REVIEW BY ATTORNEY GENERAL. (a) This section applies to any contract with a contract amount of $50 million or more:
(1)iiunder which a person provides goods or services in connection with the provision of medical or health care services, coverage, or benefits; and
(2)iientered into by the person and:
(A)iithe commission;
(B)iia health and human services agency; or
(C)iiany other state agency under the jurisdiction of the commission.
(b)iiNotwithstanding any other law, before a contract described by Subsection (a) may be entered into by the agency, a representative of the office of the attorney general shall review the form and terms of the contract and may make recommendations to the agency for changes to the contract. The office of the attorney general shall report any recommendations made under this subsection to the governor, the lieutenant governor, and the speaker of the house of representatives.
(c)iiAn agency described by Subsection (a)(2) must notify the office of the attorney general at the time the agency is initiating the applicable competitive bidding or other applicable contracting process. A representative of the office of the attorney general may participate in negotiations or discussions with proposed contractors and may be physically present during those negotiations or discussions.
(d)iiIf the office of the attorney general makes recommendations for changes to a proposed contract under Subsection (b), the office shall report those recommendations to the Commission for State Health Expenditures.
SECTIONi____.iiSubchapter A, Chapter 811, Government Code, is amended by adding Section 811.007 to read as follows:
Sec.i811.007.iiCERTAIN CONTRACTS FOR HEALTH CARE PURPOSES; REVIEW BY ATTORNEY GENERAL. (a) This section applies to any contract with a contract amount of $50 million or more:
(1)iiunder which a person provides goods or services in connection with the provision of medical or health care services, coverage, or benefits; and
(2)iientered into by the person and the retirement system.
(b)iiNotwithstanding any other law, before a contract described by Subsection (a) may be entered into by the retirement system, a representative of the office of the attorney general shall review the form and terms of the contract and may make recommendations to the retirement system for changes to the contract. The office of the attorney general shall report any recommendations made under this subsection to the governor, the lieutenant governor, and the speaker of the house of representatives.
Friday, May 30, 2003 SENATE JOURNAL 3753
(c)iiThe retirement system must notify the office of the attorney general at the time the system is initiating the applicable competitive bidding or other applicable contracting process. A representative of the office of the attorney general may participate in negotiations or discussions with proposed contractors and may be physically present during those negotiations or discussions.
(d)iiIf the office of the attorney general makes recommendations for changes to a proposed contract under Subsection (b), the office shall report those recommendations to the Commission for State Health Expenditures.
SECTIONi____.iiSubchapter A, Chapter 821, Government Code, is amended by adding Section 821.009 to read as follows:
Sec.i821.009.iiCERTAIN CONTRACTS FOR HEALTH CARE PURPOSES; REVIEW BY ATTORNEY GENERAL. (a) This section applies to any contract with a contract amount of $50 million or more:
(1)iiunder which a person provides goods or services in connection with the provision of medical or health care services, coverage, or benefits; and
(2)iientered into by the person and the retirement system.
(b)iiNotwithstanding any other law, before a contract described by Subsection (a) may be entered into by the retirement system, a representative of the office of the attorney general shall review the form and terms of the contract and may make recommendations to the retirement system for changes to the contract. The office of the attorney general shall report any recommendations made under this subsection to the governor, the lieutenant governor, and the speaker of the house of representatives.
(c)iiThe retirement system must notify the office of the attorney general at the time the system is initiating the applicable competitive bidding or other applicable contracting process. A representative of the office of the attorney general may participate in negotiations or discussions with proposed contractors and may be physically present during those negotiations or discussions.
(d)iiIf the office of the attorney general makes recommendations for changes to a proposed contract under Subsection (b), the office shall report those recommendations to the Commission for State Health Expenditures.
SECTIONi____.iiSections 531.017(d), 811.007(d), and 821.009(d), Government Code, as added by this Act, take effect only if H.B. No.i3181, Acts of the 78th Legislature, Regular Session, 2003, or another Act of the 78th Legislature, Regular Session, 2003, establishing the Commission for State Health Expenditures becomes law. If H.B. No.i3181, Acts of the 78th Legislature, Regular Session, 2003, or another Act of the 78th Legislature, Regular Session, 2003, establishing the Commission for State Health Expenditures does not become law, Sections 531.017(d), 811.007(d), and 821.009(d), Government Code, as added by this Act, have no effect.
SECTIONi____.iiSections 531.017, 811.007, and 821.009, Government Code, as added by this Act, apply only to a contract described by those sections that is entered into on or after September 1, 2003.
3754 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 68
Amend Floor Amendment No. 67 by Delisi to CSSBi1952 as follows:
(1) On Page 2 line 6 by striking "Commission for State Health Expenditures" and replacing it with "the agency engaged in the contract negotiations, the governor, the lieutenant governor, the speaker of the house of representatives and the Commission for State Health Expenditures".
(2) On page 2 line 23 by striking "governor, the lieutenant governor, and the speaker of the house of representatives" and replacing it with "the agency engaged in the contract negotiations, the governor, the lieutenant governor, the speaker of the house of representatives and the Commission for State Health Expenditures".
(3) On page 3 line 22 by striking "governor, the lieutenant governor, and the speaker of the house of representatives" and replacing it with "the agency engaged in the contract negotiations, the governor, the lieutenant governor, the speaker of the house of representatives and the Commission for State Health Expenditures".
Floor Amendment No. 69
Amend CSSB 1952 by inserting the following in Part 6:
(1) Amend Section 251.001(16) of the Election Code to read as follows:
(16) "Political Advertising" means a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:
(A) in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television or any other electronic transmission; or
(B) appears in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication.
(2) Amend Section 255.001 of the Election Code to read as follows:
Sec. 255.001. REQUIRED DISCLOSURE ON POLITICAL ADVERTISING.
(a) A person may not knowingly [enter into a contract or other agreement to]
cause to be published, distributed or broadcasted political advertising containing
express advocacy that does not indicate in the advertising:
(1) that it is political advertising; and
(2) the full name of [either the individual who personally entered into the
contract or agreement with the printer, publisher, or broadcaster or] (i) the person who
paid for the political advertising, (ii) the political committee authorizing the political
advertising or (iii) the full name of the candidate or specific-purpose committee
supporting the candidate, if such political advertising is authorized by the candidate.
[that individual represents; and
(3) in the case of advertising that is printed or published, the address of
either the individual who personally entered into the agreement with the printer or
publisher or the person that individual represents].
(b) Political advertising that is authorized by a candidate, or the candidate's agents, or political committee filing reports with the commission shall be deemed to contain express advocacy.
Friday, May 30, 2003 SENATE JOURNAL 3755
(c) A person may not knowingly use, cause or permit to be used, or continue to use any published, displayed, or broadcast political advertising containing express advocacy that the person knows does not include the disclosure required by Subsection (a). A person is presumed to know that the use of political advertising is prohibited by this subsection if the commission notifies the person in writing that the use is prohibited. A person who learns that political advertising signs, as defined by Section 255.007, that have been distributed do not include the disclosure required by Subsection (a) or include a disclosure that does not comply with Subsection (a) does not commit a continuing violation of this subsection if the person makes a good faith attempt to remove or correct those signs. A person who learns that printed political advertising other than a political advertising sign that has been distributed does not include the disclosure required by Subsection (a) or includes a disclosure that does not comply with Subsection (a) is not required to attempt to recover the political advertising and does not commit a continuing violation of this subsection as to any previously distributed political advertising.
(d) This section does not apply to tickets or invitations to political fund-raising events or to campaign buttons, pins, hats, or similar campaign materials, or to circulars or flyers that cost in aggregate to publish and distribute less than $500.
(e) A person who violates this section is liable to the state for a civil penalty that
may be levied by the Ethics Commission in its discretion in an amount not to exceed
$4000 [commits an offense. An offense under this section is a Class A misdemeanor].
Floor Amendment No. 70
Amend CSSB 1952, in PART 1 of the bill, by adding the following appropriately numbered ARTICLE and renumbering subsequent ARTICLES in PART 1 appropriately:
ARTICLE ____. DEFERRED COMPENSATION PLANS
SECTIONi__.01.iiSection 609.006(d), Government Code, is amended to read as follows:
(d)iiThe comptroller [board of trustees of the Employees Retirement System of
Texas] may adopt rules necessary to make a deferred compensation plan established
under Subchapter C a qualified plan under federal law, including federal rules and
regulations.
SECTIONi__.02.iiSection 609.007(b), Government Code, is amended to read as follows:
(b)iiThe comptroller [board of trustees of the Employees Retirement System of
Texas] may contract with an employee of a state agency participating in a deferred
compensation plan for the deferment of any part of the employee's compensation.
SECTIONi__.03.iiSection 609.010(a), Government Code, is amended to read as follows:
(a)iiThe comptroller [board of trustees], a state agency, a political subdivision, a
plan administrator, or an employee of any of those persons is not liable to a
participating employee for the diminution in value or loss of all or part of the
participating employee's deferred amounts or investment income because of market
conditions or the failure, insolvency, or bankruptcy of a qualified vendor.
SECTIONi__.04.iiSections 609.502(a)-(d), Government Code, are amended to read as follows:
3756 78th Legislature — Regular Session 82nd Day
(a)iiThe comptroller [board of trustees of the Employees Retirement System of
Texas] is the trustee and the plan administrator of a 401(k) plan known as TexaSaver
established under this subchapter.
(b)iiThe comptroller [board of trustees] is the trustee and the plan administrator
of a 457 plan established under this subchapter.
(c)iiThe comptroller [board of trustees] shall administer all aspects of each plan.
(d)iiThe comptroller [board of trustees] may designate a person to assist in the
execution of the comptroller's [board's] authority and responsibilities as plan
administrator.
SECTIONi__.05.iiSection 609.503, Government Code, is amended to read as follows:
Sec.i609.503.iiCHANGING AMOUNT DEFERRED. An employee may change
the amount to be deferred by notifying the comptroller [board of trustees] in
accordance with the requirements of the comptroller [board of trustees].
SECTIONi__.06.iiSection 609.504, Government Code, is amended to read as follows:
Sec.i609.504.iiINVESTMENT AND TRANSFER OF DEFERRED AMOUNTS
AND INCOME. After execution of a contract under Section 609.007, the comptroller
[board of trustees] shall:
(1)iiinvest the deferred amounts and investment income of the employee in the qualified investment products designated by the employee; and
(2)iipromptly transfer the deferred amounts and investment income of the
employee from one qualified investment product to another in accordance with the
requirements of the comptroller [board of trustees].
SECTIONi__.07.iiSection 609.505, Government Code, is amended to read as follows:
Sec.i609.505.iiQUALIFIED VENDOR. (a) The comptroller [board of trustees],
in accordance with rules adopted under this subchapter, may contract with a vendor
qualified to participate in a deferred compensation plan.
(b)iiIn a contract under Subsection (a), the comptroller [board of trustees] may
require the vendor to be audited annually by an independent auditor paid by the
vendor.
(c)iiA vendor or investment product having an ownership or other financial
interest in the contractor selected by the comptroller [board of trustees] to administer a
deferred compensation plan is not qualified to participate in that plan.
(d)iiThe comptroller [board of trustees] shall select vendors or investment
products based on the quality of investment performance, proven ability to manage
institutional assets, minimum net worth requirements, fee structure, compliance with
applicable federal and state laws, and other criteria established by the comptroller
[board]. The comptroller [board of trustees] shall determine the minimum and
maximum number of vendors and investment products that may be offered by a plan
at any particular time.
SECTIONi__.08.iiSection 609.506, Government Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3757
Sec.i609.506.iiINSURANCE COMPANY AS QUALIFIED VENDOR. On
written request, the Texas Department of Insurance shall certify in writing to the
comptroller [board of trustees] whether an insurance company is eligible to be a
qualified vendor under rules adopted by the comptroller [board]. The comptroller
[board] is entitled to rely on the certification.
SECTIONi__.09.iiSection 609.508, Government Code, is amended to read as follows:
Sec.i609.508.iiRULES. The comptroller [board of trustees] may adopt rules,
including plans and procedures, and orders necessary to carry out the purposes of this
subchapter, including rules or orders relating to:
(1)iithe selection and regulation of vendors for a deferred compensation plan;
(2)iithe regulation of the practices of agents employed by vendors;
(3)iithe disclosure of information concerning investment products;
(4)iithe regulation of advertising materials to be used by vendors;
(5)iithe submission of financial information by a vendor; and
(6)iithe development of a system to facilitate electronic authorization, distribution, transfer, and investment of deferrals.
SECTIONi__.10.iiSection 609.509, Government Code, is amended to read as follows:
Sec.i609.509.iiCONTRACTS FOR GOODS AND SERVICES. (a) The
comptroller [board of trustees] may contract for necessary goods and consolidated
billing, accounting, and other services to be provided in connection with a deferred
compensation plan.
(b)iiIn a contract under Subsection (a), the comptroller [board of trustees] may
provide for the comptroller [board] to audit periodically the person with whom the
contract is made. The audit may cover:
(1)iithe proper handling and accounting of state or trust funds; and
(2)iiother matters related to the proper performance of the contract.
(c)iiThe comptroller [board of trustees] may contract with a private entity to
conduct the audit under Subsection (b).
SECTIONi__.11.iiSection 609.511, Government Code, is amended to read as follows:
Sec.i609.511.iiFEE. (a) The comptroller [board of trustees] may assess a fee
against participating employees or qualified vendors, or both the employees and the
qualified vendors, in the manner and to the extent it determines necessary to cover the
costs of administering the plan.
(b)iiThe comptroller [board of trustees] shall determine the method for
computing and assessing a fee under this section.
SECTIONi__.12.iiSections 609.512(c), (g), (h), and (i), Government Code, are amended to read as follows:
(c)iiThe comptroller [board of trustees] shall administer each trust fund.
(g)iiThe comptroller [board of trustees] may establish accounts in a trust fund
that the comptroller [it] considers necessary, including an account for the
administration of the deferred compensation plan for which the trust fund was
established.
3758 78th Legislature — Regular Session 82nd Day
(h)iiThe comptroller [board of trustees] may transfer assets from one account of a
trust fund to another account of the fund for financial management purposes if
adequate arrangements are made to:
(1)iireimburse the account from which the transfer is made; and
(2)iipay administrative expenses.
(i)iiThe comptroller [board of trustees] may invest and reinvest money in a trust
fund subject only to the duty of care provided by Section 815.307 that would apply if
the investments were being made for the Employees Retirement System of Texas.
SECTIONi__.13.iiSection 609.513, Government Code, is amended to read as follows:
Sec.i609.513.iiDISCRETIONARY TRANSFER. (a) The comptroller [board of
trustees] may transfer an employee's deferred amounts and investment income from a
qualified investment product to the trust fund of the deferred compensation plan in
which the employee participates if the comptroller [board of trustees] determines that
the transfer is in the best interest of the plan and the employee.
(b)iiThe comptroller [board of trustees] is not required to give notice of a transfer
under Subsection (a) to the employee before the transfer occurs.
(c)iiPromptly after a transfer under Subsection (a) occurs, the comptroller [board
of trustees] shall give to the employee a notice that:
(1)iistates the reason for the transfer; and
(2)iirequests that the employee promptly designate another qualified investment product to receive the transferred amount.
SECTIONi__.14.iiSection 609.514, Government Code, is amended to read as follows:
Sec.i609.514.iiALTERNATIVE TO FUND DEPOSIT. Instead of depositing
deferred amounts and investment income in the trust fund of the deferred
compensation plan, the comptroller [board of trustees] may invest them in a qualified
investment product specifically designated by the comptroller [board] for that
purpose.
SECTIONi__.15.iiSection 609.515, Government Code, is amended to read as follows:
Sec.i609.515.iiFIDUCIARY INSURANCE. In the administration of a deferred
compensation plan, the comptroller [board of trustees] may purchase liability
insurance for the coverage of the comptroller and the [trustees,] employees[,] and
agents of the comptroller [board] in the amounts that the comptroller [board], in the
comptroller's [its] sole discretion, considers reasonable and necessary.
SECTIONi__.16.iiSection 609.001(1), Government Code, is repealed.
SECTIONi__.17.iiThe changes in law made by this article do not affect rules adopted, contracts entered into, contractors, vendors, or products selected, fee amounts prescribed, or investments or transfers in effect immediately before the effective date of this Act, and those rules, contracts, selections, fees, investments, and transfers remain in effect until amended or changed by an action of the comptroller of public accounts.
Friday, May 30, 2003 SENATE JOURNAL 3759
Floor Amendment No. 71
Amend CSSB 1952 by adding the following appropriately numbered ARTICLE to PART 1 of the bill and renumbering subsequent ARTICLES in PART 1 accordingly:
ARTICLE ____. RETIREMENT SYSTEM OVERSIGHT BOARD
SECTION __.01. Subtitle A, Title 8, Government Code, is amended by adding Chapter 806 to read as follows:
CHAPTER 806. RETIREMENT SYSTEM OVERSIGHT BOARD
Sec. 806.001. DEFINITIONS. In this chapter:
(1) "Oversight board" means the retirement system oversight board.
(2) "State retirement system" means the Employees Retirement System of Texas, the Judicial Retirement System of Texas Plan One, the Judicial Retirement System of Texas Plan Two, and the Teacher Retirement System of Texas. The term does not include the optional retirement program governed by Chapter 830.
Sec. 806.002. COMPOSITION OF BOARD; OFFICERS; MEETINGS. (a) The oversight board is composed of five members as described by this section.
(b) The governor, the lieutenant governor, the speaker of the house of representatives, the comptroller, and the attorney general, or the designees of those officials, serve as ex officio voting members of the oversight board. Service on the oversight board is an additional duty of the positions of those officials.
(c) The oversight board shall elect from its members a presiding officer and other officers the oversight board considers necessary to perform the oversight board's duties.
(d) The oversight board shall meet at the call of the presiding officer.
Sec. 806.003. OVERSIGHT BOARD DUTIES. (a) The oversight board shall monitor the management of state retirement system assets to ensure that each state retirement system is managing its assets in accordance with applicable constitutional and statutory provisions and applicable actuarial and investment principles.
(b) An employee, officer, or member of the board of trustees of a state retirement system shall provide to a member of the oversight board any information, other than information that is confidential under other law, that the oversight board member requests to carry out the oversight board's duties under this section.
(c) An oversight board member may attend any regular, special, or called meeting of the board of trustees of a state retirement system to carry out the oversight board's duties under this section.
Sec. 806.004. REIMBURSEMENT FOR EXPENSES. An oversight board member may not receive compensation for service on the oversight board but is entitled to reimbursement of travel expenses that the member incurs while conducting the business of the oversight board, as provided by the General Appropriations Act.
Floor Amendment No. 72
Amend CSSB 1952 in PART 7 of the bill by adding the following appropriately numbered ARTICLE and SECTION to the bill and renumbering subsequent ARTICLES and SECTIONS in PART 7 accordingly:
3760 78th Legislature — Regular Session 82nd Day
ARTICLE ____. MAILINGS BY EMPLOYEES RETIREMENT SYSTEM OF TEXAS ON BEHALF OF CERTAIN NONPROFIT ASSOCIATIONS
SECTIONi____.iiSection 815.503, Government Code, is amended by adding Subsection (e) to read as follows:
(e)iiThe retirement system may make not more than two mailings a year on behalf of a nonprofit association to persons identified in information contained in records that are in the custody of the retirement system. A nonprofit association requesting a mailing must have at least 2,000 members who are annuitants of the retirement system and must be an eligible state employee organization, as that term is defined by Section 403.0165. A mailing may only include information on membership in the nonprofit association and policy issues affecting annuitants. The nonprofit association must pay the expense of the mailing.
Floor Amendment No. 74
Amend CSSB 1952 as follows:
In SECTION 7E.03, on page 172, line 27 (House committee report) strike "August 31, 2004" and insert "March 1, 2004".
Floor Amendment No. 75
Amend CSSB 1952 by adding the following appropriately numbered article to Part 3 of the bill:
ARTICLE ____. ACCESS DRIVEWAY PERMITS
SECTIONi__.01.iiSubchapter C, Chapter 203, Transportation Code, is amended by adding Section 203.035 to read as follows:
Sec.i203.035.iiACCESS DRIVEWAY PERMITS. (a) Not later than the 42nd day after the date the department receives a complete application for a permit to construct an access driveway to a highway under the department's jurisdiction the department shall approve or deny the application. If the department does not approve or deny the application on or before the 42nd day after the date the department receives the application, the application is approved.
(b)iiIf the department denies a complete application under Subsection (a), the department shall send to the applicant written notice of the denial specifying the reasons for the denial. If the applicant resubmits the application, the department shall approve or deny the application not later than the 30th day after the date the department receives the resubmitted application. If the department does not approve or deny the resubmitted application on or before the 30th day after the date the department receives the application, the application is approved. If the department denies the resubmitted application, the application may not be subsequently resubmitted.
SECTIONi__.02.iiThis article applies only to an application for an access driveway permit received by the Texas Department of Transportation on or after the effective date of this Act. An application for an access driveway permit received before the effective date of this Act is governed by the law in effect on the date the application was received, and the former law is continued in effect for that purpose.
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Floor Amendment No. 76
Amend CSSB 1952 in Part 9 of the bill, immediately following Article 9A (House committee printing, page 229, between lines 26 and 27), by inserting the following new article:
ARTICLE 9B. CARE OF PUBLIC SCHOOL
STUDENTS WITH DIABETES
SECTION 9B.01. Chapter 38, Education Code, is amended by adding Subchapter C to read as follows:
SUBCHAPTER C. CARE OF STUDENTS WITH DIABETES
Sec.i38.101.iiDEFINITIONS. In this subchapter:
(1)ii"Individual health care plan" means the document required by Section 38.102.
(2)ii"School" means an elementary or secondary school of an independent school district.
(3)ii"School employee" means a person employed by:
(A)iia school;
(B)iia local health department that assists a school under this subchapter; or
(C)iianother entity with which a school has contracted to perform its duties under this subchapter.
(4)ii"Trained diabetes care assistant" means a school employee who has completed the training required by Section 38.103.
Sec.i38.102.iiINDIVIDUAL HEALTH CARE PLAN. (a) An individual health care plan must be developed for each student with diabetes who will seek care for the student's diabetes while at school. The plan shall be developed by:
(1)iithe student's parent or guardian; and
(2)iithe student's personal health care team, which should include the student's physician.
(b)iiAn individual health care plan must:
(1)iibe developed based on specific recommendations by the student's physician or other health care practitioner regarding the student's medical, dietary, and exercise needs and any other needs related to the student's medical condition;
(2)iiidentify the health care services the student may receive at school; and
(3)iibe signed by the student's parent or guardian and the student's personal health care team.
(c)iiThe parent or guardian of a student with diabetes who seeks care for the student's diabetes while the student is at school shall submit to the school a copy of the student's individual health care plan. The plan must be submitted to and reviewed by the school:
(1)iibefore the beginning of the school year;
(2)iion enrollment of the student, if the student enrolls in the school after the beginning of the school year; or
(3)iias soon as practicable following a diagnosis of diabetes for the student.
Sec.i38.103.iiTRAINED DIABETES CARE ASSISTANT. (a) The Texas Diabetes Council shall develop, with the assistance of the following entities, guidelines for the training of school employees in the care of students with diabetes:
3762 78th Legislature — Regular Session 82nd Day
(1)iithe School Health Program of the Texas Department of Health;
(2)iithe American Diabetes Association;
(3)iithe Juvenile Diabetes Research Foundation International;
(4)iithe American Association of Diabetes Educators;
(5)iithe agency; and
(6)iithe Texas School Nurses Organization.
(b)iiA school employee is not required to be a health care professional to be designated as a trained diabetes care assistant. The board of trustees of a school district may not require a school employee to serve as a trained diabetes care assistant.
(c)iiIf a school nurse is assigned to a campus:
(1)iithe school nurse may be recognized as the trained diabetes care assistant at that campus; or
(2)iithe school nurse may supervise one or more other school employees acting as trained diabetes care assistants.
(d)iiIf a school nurse is not assigned to a campus:
(1)iieach trained diabetes care assistant must have access, for emergency or informational assistance, to an individual who has expertise in the care of persons with diabetes, such as a physician, registered nurse, certified dietitian educator, or licensed dietitian; or
(2)iithe school must have access to a licensed health care professional who is a member of the student's personal health care team.
(e)iiA trained diabetes care assistant who is not a licensed health care professional may not perform an activity that may otherwise be performed only by a licensed health care professional unless:
(1)iia licensed health care professional enters an appropriate written order delegating the activity to the trained diabetes care assistant; and
(2)iithe order is maintained with the student's personal health care plan or other student records.
(f)iiTraining under this section must be provided annually by a health care professional with expertise in the care of persons with diabetes. The training must be provided before the beginning of the school year or as soon as practicable following:
(1)iithe enrollment of a student with diabetes at a campus that previously had no students with diabetes; or
(2)iia diagnosis of diabetes for a student at a campus that previously had no students with diabetes.
(g)iiThe training must include instruction in:
(1)iirecognizing signs of hypoglycemia and hyperglycemia;
(2)iisteps to take if the blood glucose levels of a student with diabetes are outside the target ranges indicated by the student's individual health care plan;
(3)iihow to follow a physician's instructions concerning diabetes medication dosages, administration, and frequency of administration;
(4)iiperforming finger-sticks to check blood glucose levels, checking ketone levels, and recording the results of those checks;
(5)iiadministering glucagon and insulin and recording the results of the administration; and
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(6)iithe recommended schedules and food intake for meals and snacks for a student with diabetes, the effect of physical activity on blood glucose levels, and the steps to take if a student's schedule is disrupted.
(h)iiThe training must be provided without charge to the school employee receiving the training.
(i)iiThe board of trustees of a school district shall ensure that there is at least one trained diabetes care assistant at each campus attended by one or more students with diabetes.
Sec.i38.104.iiINFORMATION FOR CERTAIN EMPLOYEES. A school district shall provide to each school employee who is responsible for transporting a student with diabetes or for supervising a student with diabetes during an off-campus activity a one-page information sheet that:
(1)iiidentifies the student with diabetes;
(2)iiidentifies potential emergencies involving the student's diabetes and appropriate responses to such emergencies; and
(3)iiprovides telephone numbers of persons the employee may contact in an emergency involving the student's diabetes.
Sec.i38.105.iiREQUIRED CARE OF STUDENTS WITH DIABETES. (a) At the written request of a parent or guardian of a student with diabetes and in compliance with the student's individual health care plan, a trained diabetes care assistant shall:
(1)iirespond to the student's blood glucose level if it is outside the target range specified in the student's individual health care plan; and
(2)iiassist the student in following instructions regarding meals, snacks, and physical activity.
(b)iiA school shall ensure to the greatest extent practicable that the trained diabetes care assistant is present and available to provide the required care to a student with diabetes during the regular school day.
(c)iiA school district may not restrict the assignment of a student with diabetes to a particular campus on the basis that the campus does not have the required trained diabetes care assistants.
(d)iiA trained diabetes care assistant who performs an activity described by Subsection (a) in compliance with the individual health care plan of a student with diabetes:
(1)iiis not considered to be engaging in the practice of:
(A)iiprofessional nursing under Chapter 301, Occupations Code, or other state law; or
(B)iivocational nursing under Chapter 302, Occupations Code, or other state law; and
(2)iiif delegated to perform the activity as required by Section 35.103(e), is exempt from any applicable state law or rule that restricts the activities that may be performed by a person who is not a health care professional.
Sec.i38.106.iiINDEPENDENT MONITORING AND TREATMENT. On the written request signed by a parent or guardian of a student with diabetes, and if permitted by the student's individual health care plan, a school shall permit the student to:
3764 78th Legislature — Regular Session 82nd Day
(1)iiperform blood glucose level checks;
(2)iiadminister insulin through the insulin delivery system the student uses;
(3)iitreat hypoglycemia and hyperglycemia;
(4)iipossess on the student's person at any time any supplies or equipment necessary to monitor and care for the student's diabetes; and
(5)iiotherwise attend to the management and care of the student's diabetes in the classroom, in any area of the school or school grounds, or at any school-related activity.
SECTION 9B.02. Subchapter C, Chapter 38, Education Code, as added by this Act, applies beginning with the 2004-2005 school year.
Floor Amendment No. 77
Amend CSSB 1952 (House committee printing), in Part ___, by adding an appropriately numbered ARTICLE to read as follows and renumbering existing ARTICLES accordingly:
ARTICLEi____.iiUNIFIED DRUG ENFORCEMENT STRATEGY
SECTIONi__.01.iiSection 772.006, Government Code, is amended by adding Subsections (d) and (e) to read as follows:
(d)iiThe criminal justice division may not award a grant under this section to a multijurisdictional drug task force.
(e)iiThe criminal justice division may award a grant under this section to fund a unified drug enforcement strategy by multiple law enforcement agencies through an interlocal contract made under Chapter 791 and approved by the director of the Department of Public Safety. The contract must require that:
(1)iithe enforcement strategy be under the command and control of the director; and
(2)iia peace officer participating in an activity that is part of the enforcement strategy and who is outside of the jurisdiction of the law enforcement agency served by the officer may make an arrest only if:
(A)iithe officer would otherwise be authorized to make the arrest under Article 14.03, Code of Criminal Procedure; or
(B)iithe officer is in the presence of another peace officer who serves a law enforcement agency with jurisdiction at the place at which the arrest is to be made.
Floor Amendment No. 78
Amend CSSB 1952 by adding the following appropriately numbered PART to the bill:
PART ____. CRIMINAL PROCEDURE
ARTICLE ____. USE OF TELECONFERENCING TO ENTER
CERTAIN PLEAS OR WAIVERS
SECTION __.01. Article 27.18, Code of Criminal Procedure, is amended by adding Subsections (d), (e), and (f) to read as follows:
(d) A defendant who is confined in a county other than the county in which charges against the defendant are pending may use the teleconferencing method provided by this article to enter a plea or waive a right in the court with jurisdiction over the case.
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(e) A defendant who enters a plea or waiver under Subsection (d):
(1) consents to venue in the county in which the court receiving the plea or waiver is located; and
(2) waives any claim of error related to venue.
(f) If a defendant enters a plea of guilty or nolo contedere under Subsection (d), the attorney representing the state may request at the time the plea is entered that the defendant submit a fingerprint of the defendant suitable for attachment to the judgment. On request for a fingerprint under this subsection, the county in which the defendant is confined shall obtain a fingerprint of the defendant and use first class mail or other means acceptable to the attorney representing the state and the county to forward the fingerprint to the court accepting the plea.
Floor Amendment No. 80
Amend CSSB 1952 (House committee report) by adding the following appropriately numbered ARTICLE to PART 9 of the bill and renumbering the other ARTICLES accordingly:
ARTICLE ____. UNIVERSITY OF NORTH TEXAS AT DALLAS
SECTION __.01. Section 105.451(d), Education Code, is amended to read as follows:
(d)iiNotwithstanding any other provision of this subchapter, the University of
North Texas at Dallas may operate as a general academic teaching institution with its
own chief executive officer, administration, and faculty only after the Texas Higher
Education Coordinating Board certifies that enrollment at the University of North
Texas System Center at Dallas has reached an enrollment equivalent to 935 [2,500]
full-time students for one semester. Until that enrollment level is reached, the board
may operate a system center of the University of North Texas in the city of Dallas.
Floor Amendment No. 84
Amend CSSB 1952 by adding a new section to the bill, numbered appropriately, to read as follows and renumbering the existing sections of the bill accordingly:
Section ____. (a) Section 155.051, Occupations Code is amended to read as follows:
(b) An applicant who is a graduate of a program designed to lead to both a doctor
of philosophy degree and a doctor of medicine degree or doctor of osteopathy degree
must pass each part of an examination described by Section 155.0511(2), (3), (4), (6),
or (7) not later than the second anniversary of the date the applicant completed the
graduate medical training described by Section 155.003(a)(5) [was awarded a doctor
of medicine degree or doctor of osteopathy degree].
(b) The changes in law made by this section apply to a person who files an application with the Texas State Board of Medical Examiners for a license to practice medicine in this state on or after the effective date of this section or whose license application is pending on the effective date of this section.
(c) This section 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 section does not receive the vote necessary for immediate effect, this section takes effect September 1, 2003.
3766 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 85
Amend CSSB 1952 by adding the following appropriately numbered article to Part 7 of the bill and renumbering the subsequent articles of that part of the bill accordingly:
ARTICLE ____. REPORTS ON EFFICIENCY OF DEPARTMENT OF
PUBLIC SAFETY OFFICERS
SECTIONi__.01.iiSection 411.007(d), Government Code, is amended to read as follows:
(d)iiAt least annually the heads of the divisions and bureaus, after due investigation, shall make a report to the director of the efficiency of each employee within the division or bureau. These reports shall be kept in the department's permanent files and shall be given proper consideration in all matters of promotion and discharge. If the employee is an officer commissioned by the department, the officer's immediate supervisor shall prepare an initial report of the officer's efficiency and present that report to the officer for review and comment. After the officer has been given a reasonable opportunity to review the report and attach additional written information or comments, the department shall require the officer to forward the report, together with any written information or comments added by the officer, to the officer's next immediate supervisor. A supervisor at each intermediate level of supervision of the officer shall review the report and either concur in the evaluations and decisions made by the officer's immediate supervisor or supplement the report by providing additional information or comments. Any additional information or comments provided by the officer or a supervisor of the officer must be kept with the report in the department's permanent files and be given appropriate consideration as part of the report in all matters related to promotion and discharge of the officer.
Floor Amendment No. 89
Amend CSSB 1952 by adding the following appropriately numbered article to Part 1 of the bill and renumbering the subsequent articles of Part 1 of the bill accordingly:
ARTICLE ____. STARS OVER TEXAS MUSIC TOUR
SECTION __.01. Chapter 442, Government Code, is amended by adding Section 442.019 to read as follows:
Sec. 442.019. STARS OVER TEXAS MUSIC TOUR. (a) The commission, with the advice of the Music, Film, Television, and Multimedia Office in the governor's office, shall develop and implement a program in accordance with this section to promote the preservation of Texas music history and related tourism and to honor the state's musical heritage.
(b) The program shall be referred to as the "Stars Over Texas Music Tour."
(c) The program shall create an official symbol of designation to recognize and honor persons, events, and locations in this state that are related to Texas music history.
(d) The program shall develop strict standards of eligibility for the presentation of the official symbol of designation under this section.
(e) The program shall, as appropriate, present the official symbol of designation in the form of:
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(1) a plaque or other public display, to mark an event or specific location that the office considers to be of significant value to the state's musical heritage; and
(2) an award, to recognize the significant contribution of a person or organization to the state's musical heritage.
(f) The commission shall adopt procedures as necessary to implement the program under this section and shall, as necessary, enter into:
(1) a memorandum of understanding with the Texas Commission on the Arts in accordance with Section 444.030;
(2) an agreement with the Music, Film, Television, and Multimedia Office in the governor's office;
(3) a memorandum of understanding with the Texas Department of Economic Development in accordance with Section 481.028; and
(4) an agreement with the Texas Department of Transportation.
Floor Amendment No. 90
Amend CSSB 1952 by adding the following ARTICLE, appropriately numbered, and renumbering the subsequent ARTICLES of the bill appropriately:
ARTICLE ____. CERTAIN FEDERAL GRANTS
SECTIONi__.01.iiSubchapter I, Chapter 391, Transportation Code, is amended by adding Section 391.256 to read as follows:
Sec.i391.256.iiCERTAIN FEDERAL GRANTS. (a) The department shall plan, design, and establish a program for designating highways in accordance with 23 U.S.C. Section 162.
(b)iiThe department shall:
(1)iidevelop grant projects for highways in accordance with 23 U.S.C. Section 162; and
(2)iiapply for funding under 23 U.S.C. Section 162 for the grant projects.
(c)iiThe department may not use money from the state highway fund or the Texas Mobility Fund for the purposes of this section.
(d)iiThe department shall adopt rules to implement this section.
Floor Amendment No. 92
Amend CSSB 1952 by adding the following SECTION, appropriately numbered, and renumbering subsequent SECTIONS of the bill accordingly:
SECTION ____. Subtitle E, Title 3, Finance Code, is amended by adding Chapter 157 to read as follows:
CHAPTER 157. CREDIT REPORTING BUREAUS
SUBCHAPTER A. GENERAL PROVISIONS
Sec.i157.001.iiDEFINITIONS. In this chapter:
(1)ii"Commissioner" means the banking commissioner of Texas.
(2)ii"Credit reporting bureau" means a person who engages in the practice of assembling or reporting credit information about individuals for the purpose of furnishing the information to a third party.
(3)ii"Department" means the Texas Department of Banking.
3768 78th Legislature — Regular Session 82nd Day
(4)ii"Principal," in connection with management of a license holder or applicant, means a person who performs executive functions or otherwise controls the executive affairs of a license holder, including an owner, officer, director, partner, trustee, or manager of the license holder.
SUBCHAPTER B. POWERS AND DUTIES OF
DEPARTMENT AND COMMISSION
Sec.i157.101.iiADMINISTRATION. The department shall administer this chapter.
Sec.i157.102.iiRULES. (a) The Finance Commission of Texas may:
(1)iiadopt rules necessary to enforce and administer this chapter, including rules relating to an application for a license; and
(2)iiadopt rules to accomplish the purposes of Chapter 20, Business & Commerce Code, and any other law applicable to a credit reporting bureau, including rules reasonable or necessary to:
(A)iiimplement and clarify Chapter 20, Business & Commerce Code; and
(B)iidefray the cost of enforcing Chapter 20, Business & Commerce Code, and any other law applicable to a credit reporting bureau.
(b)iiIn adopting rules under this section, the Finance Commission of Texas shall consider the necessity to:
(1)iipromote a stable consumer reporting environment; and
(2)iiprovide adequate protection to consumers and their personal identifying information.
SUBCHAPTER C. APPLICATION FOR AND ISSUANCE OF LICENSE
Sec.i157.201.iiA credit reporting bureau may not engage in the practice of assembling or reporting credit information about individuals in this state for the purpose of furnishing the information to a third party, as a service or for consideration, unless the credit reporting bureau holds a license issued under this chapter.
Sec.i157.202.iiAPPLICATION. (a) An application for a license must be in writing, sworn to, and filed with the commissioner in the form the commissioner prescribes.
(b)iiThe application must:
(1)iistate the full legal name, federal taxpayer identification number or social security number, and business address of the applicant, and, the full legal name, federal taxpayer identification number or social security number, and the business address of:
(A)iieach individual who is a principal of the applicant; and
(B)iieach individual who is a principal of any person that is a principal of the applicant; and
(2)iidisclose any other information that may be required by rule or reasonably requested by the commissioner.
Sec.i157.203.iiACCOMPANYING FEE, STATEMENTS, AND BOND. (a) An application for a license must be accompanied by:
(1)iia nonrefundable application fee in an amount established by rule that is sufficient to administer this chapter;
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(2)iiaudited financial statements of the applicant that are reasonably satisfactory to the commissioner;
(3)iithe location of the home office of the applicant and of the main office of the applicant in this state; and
(4)iia surety bond in the amount of $100,000 that is:
(A)iiin a form satisfactory to the commissioner; and
(B)iiissued by a bonding company or insurance company authorized to do business in this state.
Sec.i157.204.iiISSUANCE OF LICENSE. On the filing of an application that meets the requirements of Sections 157.202 and 157.203, the commissioner shall issue a license to the applicant if the commissioner:
(1)iiapproves the documents; and
(2)iifinds that the bond is in the prescribed amount.
Sec. 157.205. DENIAL OF LICENSE; HEARING. (a) A hearing must be held before a license may be denied.
(b)iiThe commissioner shall give the applicant notice of the hearing.
SUBCHAPTER D. REQUIREMENTS TO MAINTAIN LICENSE
Sec.i157.301.iiINSUFFICIENT BOND. (a) If the commissioner at any time reasonably determines that the bond required by this chapter is insecure or deficient in amount, the commissioner by written order may require the license holder to file a new or supplemental bond to secure compliance with this chapter.
(b)iiThe license holder shall comply with the order not later than the 30th day after the date on which the order is served.
Sec.i157.302.iiANNUAL LICENSE FEE. (a) Not later than June 30 of each year, a license holder shall pay to the commissioner a license renewal fee in an amount established by rule.
(b)iiThe fee required by Section 157.203(1) satisfies the license fee requirement for the first license year or part of that year.
Sec.i157.303.iiREVOCATION OF LICENSE. (a) The commissioner may revoke a license:
(1)iion a ground on which the commissioner may refuse to grant a license; or
(2)iifor a violation of this chapter.
(b)iiThe commissioner may investigate the business and records of a license holder if the commissioner has reasonable cause to believe that grounds for revocation exist.
Sec.i157.304.iiHEARING ON LICENSE REVOCATION. (a) The commissioner shall give a license holder an opportunity for a hearing before a license may be revoked.
(b)iiThe commissioner shall give the license holder notice of the hearing.
SUBCHAPTER E. CRIMINAL PENALTIES AND CIVIL REMEDIES
Sec.i157.401.iiCRIMINAL PENALTY. (a) A person commits an offense if the person intentionally:
(1)iimakes an untrue statement of a material fact in an application or report required to be filed with the commissioner under this chapter; or
(2)iiviolates Section 157.201.
(b)iiAn offense under this section is a third degree felony.
3770 78th Legislature — Regular Session 82nd Day
Sec.i157.402.iiADMINISTRATIVE PENALTY. (a) The commissioner may impose an administrative penalty on a person in an amount specified by the commissioner if, after notice and hearing, the commissioner finds the person has violated:
(1)iithis chapter;
(2)iia rule adopted under this chapter; or
(3)iian order of the commissioner issued under this chapter.
(b)iiThe amount of the penalty may not exceed:
(1)ii$1,000 for each violation; or
(2)ii$1,000 for each day the violation continues.
Sec.i157.403.iiSUIT BY ATTORNEY GENERAL. The attorney general may sue on behalf of claimants on the bond required by Section 152.203(4) in a district court in Travis County, either in one action or successive actions.
Floor Amendment No. 93
Amend CSSB 1952 by adding the following SECTION and renumbering the subsequent SECTIONS accordingly:
SECTION _____. Section 498.004(a), Government Code, as amended by Chapters 249 and 321, Acts of the 74th Legislature, Regular Session, 1995, is reenacted and amended to read as follows:
(a) If, during the actual term of imprisonment of an inmate in the institutional
division or in a transfer facility, the inmate commits an offense or violates a rule of the
division, the department may forfeit all or any part of the inmate's accrued good
conduct time. The department may [not] restore good conduct time forfeited under
this subsection.
Floor Amendment No. 95
Amend CSSB 1952 (House committee printing) by adding the following new SECTIONS _____ on page 7, line 18 and renumbering accordingly:
SECTION _____. Amend Section 1051.001, Occupations Code to read as follows:
(3) "Interior design" means the:
(A) performance of professional services, for a fee or other compensation, directly or indirectly, to another person, or to a partnership, corporation, or other legal entity, that include:
(1) preparing and filing interior design construction documents with code enforcement officials for nonstructural or non-seismic interior construction;
(2) obtaining building permits for nonstructural or non-seismic interior construction;
(3) preparing documents to illustrate materials, finishes, space planning, reflected ceiling plans, furnishings, fixtures, and equipment;
(4) analyzing a client's needs, goals, and life safety requirements while protecting the public health, safety, and welfare;
(5) integrating findings with knowledge of interior design;
(6) formulating preliminary design concepts that are appropriate, functional, and aesthetic;
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(7) developing and presenting final design recommendations through appropriate presentation media;
(8) collaborating with closely allied design professionals who are licensed practitioners offering professional services as required for regulatory approval;
(9) preparing and administering bids and contract documents as the client's agent; and
(10) reviewing and evaluating the implementation of projects while in progress and on completion as a representative of, and on behalf of, the client.
(B) The term "interior design" does not include an act, service or work within the scope of the practice of architecture as defined by Chapter 1051 of the Occupations Code or an act, service or work within the scope of the practice of engineering as defined by Chapter 1001 of the Occupations Code. The term also does not include the performance of services relating to:
(1) structural, mechanical, plumbing, heating, air conditioning, ventilation, electrical, or vertical transportation systems;
(2) construction of stairwells; and
(3) construction that affects life-safety systems including, but not limited to:
(a) performance of mechanical systems;
(b) fire safety protection;
(c) fire-rated vertical shafts and multi-story structures;
(d) smoke evacuation and compartmentalization;
(e) emergency sprinkler and alarm systems; and
(f) emergency ingress and egress systems.
SECTION _____. Section 1053.002, Occupations Code, is amended to read as follows:
Sec. 1053.002. APPLICATION. (a) This chapter does not apply to a person who:
(1) does not use the title "interior designer" and does not use the term "interior design" to describe a service the person offers or performs; or
(2) is registered to practice architecture in this state, or works under the control, instruction or supervision of a registered architect, if the architect does not use the term "Registered Interior Designer" unless also registered under this chapter.
(b) This chapter does not:
(1) prohibit an employee of a retail establishment from providing consultations regarding interior decoration or furnishings:
(A) on the premises of the retail establishment; or
(B) in furtherance of a retail sale or prospective retail sale [an interior
designer or architect from performing an interior design service under the control,
instruction, or supervision of the interior designer or architect]; [or]
(2) restrict the practice or activities of or the provision of a service by a person engaged in a profession or occupation for which the person is licensed or registered in this state under any other law; or
3772 78th Legislature — Regular Session 82nd Day
(3) restrict the activities of a person who provides decorative services or assistance in the selection of surface materials, window coverings, wall coverings, paint, floor coverings, surface-mounted fixtures, and loose furnishings not subject to regulation.
SECTION _____. The heading to Subchapter D, Chapter 1053, Occupations Code, is amended to read as follows:
SUBCHAPTER D. REGISTRATION [REQUIREMENTS]
SECTION _____. Section 1053.151, Occupations Code, is amended to read as follows:
Sec. 1053.151. REGISTRATION REQUIRED. A person other than an interior designer may not:
(1) engage in the practice of interior design or offer or attempt to engage in the practice of interior design unless the person is registered under this chapter; or
(2) hold the person out as engaged in the practice of interior design or, unless all interior design services provided by the person are rendered by or under the responsible supervisory control of a person registered under this chapter, represent:
(A) that the person is an "interior designer" by using that title or the term "Registered Interior Designer"; or
(B) [(2) represent, by using the term "interior design" a service the
person offers or performs] that the person may offer or perform an "interior design"
service.
SECTION _____. Section 1053.152(b), Occupations Code, is amended to read as follows:
(b) To be eligible for a certificate of registration, an applicant must:
(1) meet the qualifications established by the board under Subsection (a);
(2) pass the [registration] examination of the National Council for Interior
Design Qualification or a similar national organization recognized by the board; [and]
(3) pay the required fees;
(4) hold a professional degree in interior design or architecture conferred by a design program accredited by the Foundation for Interior Design Education Research or a substantially equivalent program, as determined by the board; and
(5) have two years of diversified experience as determined by the board.
SECTION _____. Section 1053.154(b), Occupations Code, is amended to read as follows:
(b) The examination must cover subjects established by and must be graded
according to board rules. The board by rule shall [may] adopt the examination of the
National Council for Interior Design Qualification or a similar national organization
recognized by the board [comparable examination].
SECTION _____. Section 1053.160, Occupations Code by adding a new Subsection (e) as follows:
(e) Construction documents that bear the seal of a registered interior designer who holds a certificate from the National Council for Interior Design Qualification shall be accepted for filing by the appropriate jurisdiction or local building department.
SECTION _____. Section 1053.201, Occupations Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3773
(a) Except as provided by Subsection (b), a certificate of registration issued
under this chapter is valid for one year from the date of issuance. [The board shall
provide for the annual renewal of a certificate of registration.]
(c) Effective December 1, 2005, to be eligible to renew a certificate of registration, an interior designer who has not passed the examination of the National Council for Interior Design Qualification or an examination of a similar national organization recognized by the board, must have:
(1) passed the building and barrier-free code section of the examination of
the National Council for Interior Design Qualification or a similar national
organization recognized by the board; or and
(2) completed, in addition to the continuing education requirements required
for renewal of the certificate of registration under Section 1053.205, 15 hours of
board-approved continuing education classes relating to building and barrier free
codes and regulations. the Texas Accessibility Standards and building codes approved
for adoption in Texas.
SECTION _____. Section 1053.351, Occupations Code, is amended to read as follows:
Sec. 1053.351. CRIMINAL PENALTY. (a) A person commits an offense if the
person knowingly violates [Section 1053.151 or a standard of conduct adopted under]
this chapter or a rule adopted under this chapter.
(b) An offense under this section is a [Class C] misdemeanor punishable by a
fine of not less than $250 or more than $5,000. Each day of violation constitutes a
separate offense.
SECTION _____. Chapter 1053, Occupations Code, is amended by adding Subchapter I to read as follows:
SUBCHAPTER I. PRACTICE BY INTERIOR DESIGNER
Sec. 1053.401. SUPERVISION BY INTERIOR DESIGNER. Each interior design office must have an interior designer or architect who is responsible for interior design work performed at that location. The interior designer or architect shall provide responsible supervisory control over each nonregistered person working at that location in the practice of interior design. Responsible Supervisory Control is the direct responsibility for supervision by an interior designer or architect of the work and decision-making process, including the ability to review, enforce, and control compliance with all design criteria and life safety requirements. For purposes of this subdivision, supervision is not required to be continuous and uninterrupted.
Sec. 1053.402. DUTIES TO CLIENT. (a) Before entering into a contract with a client, an interior designer must clearly determine and disclose the scope and nature of the project and the method of compensation.
(b) An interior designer shall notify each client of the name and address of the board.
Sec. 1053.404. COMPLIANCE WITH CERTAIN REQUIREMENTS. Each interior designer shall practice in compliance with all applicable building codes, fire codes, local regulations, and other safety requirements adopted by the board or another regulatory entity implemented to prohibit practice by persons who:
(1) fail to practice within the bounds of minimum competency requirements; or
3774 78th Legislature — Regular Session 82nd Day
(2) otherwise present a danger to the public.
SECTION _____. Section 1053.158, Occupations Code, is repealed.
SECTION _____. The Texas Board of Architectural Examiners shall issue a certificate of registration as an interior designer to a person who applies for registration as an interior designer with the board and pays the required fees before the second anniversary of the effective date of this Act if the person presents evidence satisfactory to the board that the person has passed the examination of the National Council for Interior Design Qualification or a similar national organization recognized by the board.
SECTION _____. (a) The change in law made by this Act to Section 1053.351, Occupations Code, applies only to the punishment for an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.
(b) An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose.
SECTION _____. The Texas Board of Architectural Examiners shall adopt rules as required by Chapter 1053, Occupations Code, as amended by this Act, not later than December 1, 2003.
SECTION _____. The change in law made by this Act to Section 1053.201, Occupations Code, takes effect September 1, 2003, and applies only to an application for an initial or renewal interior designer certificate of registration that is filed with the Texas Board of Architectural Examiners on or after January 1, 2004. An application filed before January 1, 2004, is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.
Floor Amendment No. 98
Amend CSSB 1952 by striking Article 1H in Part 1 of the bill.
Floor Amendment No. 99
Substitute the following for Floor Amendment No. 98 to CSSB 1952 as follows:
(1) In Section 1H.01 of the bill, in added Section 401.105(a), Government Code (House committee report, page 4, lines 23-25), strike the first sentence and substitute the following: "In this section, "state agency" does not include an institution of higher education as defined by Section 61.003, Education Code.
Floor Amendment No. 3 on Third Reading
Amend CSSB 1952 on third reading by striking ARTICLE 1N of the bill (page 42, line 14, through page 43, line 24) and renumbering ARTICLES in PART 1 of the bill accordingly.
Floor Amendment No. 4 on Third Reading
Amend CSSB 1952 on third reading by striking Article 2D, relating to sales tax on motor vehicles, in Part 2 of the bill.
The amendments were read.
Friday, May 30, 2003 SENATE JOURNAL 3775
Senator Ellis moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1952 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Ellis, Chair; Harris, Armbrister, Nelson, and Whitmire.
SENATE RESOLUTION 1010
Senator Madla offered the following resolution:
WHEREAS, The San Antonio Spurs finished the 2002-2003 regular season with the best record in the NBA; and
WHEREAS, The San Antonio Spurs finished the 2002-2003 regular season as the Mid-West Conference Champions; and
WHEREAS, Tim Duncan repeated as the National Basketball Association's Most Valuable Player; and
WHEREAS, The San Antonio Spurs entered into the Western Conference playoffs as the number one seeded team; and
WHEREAS, The San Antonio Spurs defeated the Dallas Mavericks four games to two in a best of seven game series for the Western Conference Championship; and
WHEREAS, The San Antonio Spurs will once again be playing for the National Basketball Association's Championship; now, therefore, be it
RESOLVED, That the Bexar County Delegation of the Texas Senate, 78th Legislature, hereby would like to thank the Dallas Mavericks for participating in this year's Western Conference Finals, pick up your commemorative "We Got Fourth Place" tee-shirt on the way out the door; and, be it further
RESOLVED, That the Bexar County Delegation of the Texas Senate, 78th Legislature, hereby would like to say "GO SPURS GO!!!"
MADLA
VANiDEiPUTTE
WENTWORTH
ZAFFIRINI
The resolution was read.
SENATE RESOLUTION 1013
Senator Zaffirini offered the following resolution:
WHEREAS, The Senate of the State of Texas is pleased to recognize the coach and players of the San Antonio Spurs for winning the Western Conference Championship title in the National Basketball Association play-offs; and
3776 78th Legislature — Regular Session 82nd Day
WHEREAS, The San Antonio Spurs defeated the Dallas Mavericks 90-78 in the hotly contested play-off game; with the Spurs down 13 points and less than four minutes left, Steve Kerr entered the game and converted all four of his three-point shots to clinch the victory; and
WHEREAS, The Spurs, who are led by Coach Gregg Popovich and Most Valuable Player of the Year, Tim Duncan, have had an impressive performance in the Interstate 35 series; and
WHEREAS, Since the Dallas Chaparrals had the good sense to move to SaniAntonio to become the San Antonio Spurs, one city became the better for it; now two former American Basketball Association teams will meet in the NBA finals; now, therefore, be it
RESOLVED, That the Senate of the State of Texas, 78th Legislature, hereby congratulate the San Antonio Spurs basketball team, Coach Gregg Popovich, and all who are a part of the team for their outstanding performance in the Western Conference play-off and extend to them best wishes for success in the championship finals; and, be it further
RESOLVED, That the Senate also recognize the Dallas Mavericks for their impressive regular season and play-off run; and, be it further
RESOLVED, That the San Antonio Senate Delegation is looking forward to being treated by the Dallas Senate Delegation to Texas barbecue, with soy barbecue for Senator Zaffirini.
ZAFFIRINI
MADLA
VANiDEiPUTTE
WENTWORTH
The resolution was read.
SRi1010 and SRi1013 were adopted without objection.
SENATE BILL 1182 WITH HOUSE AMENDMENTS
Senator Deuell called SBi1182 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer, Senator Armbrister in Chair, laid the bill and the House amendments before the Senate.
Committee Amendment No. 1
(1)iiAmend SB 1182 by inserting the following new subsections (e) and (f) to read as follows:
(e)iiThe performance agreement shall specify required standard outcomes for the programs administered by a local authority. Performance related to these outcomes must be verifiable by the Department, but should include community center and advocacy group input.
(f)iiMeasures relating to outputs and units of service delivered, shall be included in the performance agreement, and recorded in the local authority automated data systems. Copies of these output/service reports shall be forwarded to the Department at least annually, as determined by the Department.
(2)iiRenumber the remaining subsections accordingly.
Friday, May 30, 2003 SENATE JOURNAL 3777
Floor Amendment No. 2
Amend Committee Amendment No. 1 to SB 1182 by striking the text of the amendment and substituting the following:
Amend SB 1182 as follows:
(1) In proposed Section 533.0354(d), Health and Safety Code, as added by SECTION 1 of the bill (page 2, lines 18-21), strike Paragraphs (d)(2)(D) and (d)(2)(E) and substitute the following:
(D) goals to divert consumers of services from the criminal justice system;
(E) goals to ensure that a child with mental illness remains with the child's parent or guardian as appropriate to the child's care; and
(F) opportunities for innovation in services and service delivery.
(e) The department and the local mental health or mental retardation authority by contract shall enter into a performance agreement that specifies required standard outcomes for the programs administered by the local authority. Performance related to the specified outcomes must be verifiable by the department. The performance agreement must include measures related to the outputs, costs, and units of service delivered. Information regarding the outputs, costs, and units of service delivered shall be recorded in the local authority's automated data systems, and reports regarding the outputs, costs, and units of service delivered shall be submitted to the department at least annually as provided by department rule.
(f) The department and the local mental health or mental retardation authority shall provide an opportunity for community centers and advocacy groups to provide information or assistance in developing the specified performance outcomes under Subsection (e).
(2) In Subsection (b) of SECTION 2 of the bill (page 2, line 27), strike "Subsection (c), Section 533.0354," and substitute "Sections 533.0354(c) and (e),".
(3) In Subsection (b) of SECTION 2 of the bill (page 3, line 1), strike "applies" and substitute "apply".
Floor Amendment No. 3
Amend SB 1182 (House committee printing) in Section 1 of the bill as follows:
(1) In proposed Paragraph (B), Subdivision (1), Subsection (d), Section 533.0354, Health and Safety Code (page 2, line 7), between the semi-colon and "and", insert:
(C) consumers of services of state schools for persons with mental retardation, members of families of those consumers, and members of state school volunteer services councils, if a state school is located in the local service area of the local authority;
(2) At the beginning of proposed Paragraph (C), Subdivision (1), Subsection (d), Section 533.0354, Health and Safety Code (page 2, line 8), strike "(C)" and substitute "(D)".
(3) In proposed Paragraph (D), Subdivision (2), Subsection (d), Section 533.0354, Health and Safety Code (page 2, line 19), between the semi-colon and "and", insert:
3778 78th Legislature — Regular Session 82nd Day
(E) opportunities for innovation to ensure that the local authority is communicating to all potential and incoming consumers about the availability of services of state schools for persons with mental retardation in the local service area of the local authority;
(4) At the beginning of proposed Paragraph (E), Subdivision (2), Subsection (d), Section 533.0354, Health and Safety Code (page 2, line 20), strike "(E)" and substitute "(F)".
Floor Amendment No. 4
Amend SB 1182 by adding the following appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS accordingly:
SECTION _____. Chapter 574, Health and Safety Code, is amended by adding Subchapter I to read as follows:
SUBCHAPTER I. TESTIMONY BY CLOSED-CIRCUIT VIDEO
TELECONFERENCING AT PROCEEDINGS
Sec. 574.201. APPLICATION OF SUBCHAPTER. This subchapter applies only to a hearing or proceeding related to court-ordered mental health services under this chapter.
Sec. 574.202. CERTAIN TESTIMONY BY CLOSED-CIRCUIT VIDEO TELECONFERENCING PERMITTED. (a) A judge or magistrate may permit a physician or a nonphysician mental health professional to testify at a hearing or proceeding by closed-circuit video teleconferencing if:
(1) closed-circuit video teleconferencing is available to the judge or magistrate for that purpose;
(2) the proposed patient and the attorney representing the proposed patient do not file with the court a written objection to the use of closed-circuit video teleconferencing;
(3) the closed-circuit video teleconferencing system provides for a simultaneous, compressed full-motion video and interactive communication of image and sound between all persons involved in the hearing; and
(4) on request of the proposed patient, the proposed patient and the proposed patient's attorney can communicate privately without being recorded or heard by the judge or magistrate or by the attorney representing the state.
(b) The judge or magistrate must provide written notice of the use of closed-circuit video teleconferencing to the proposed patient, the proposed patient's attorney, and the attorney representing the state not later than the third day before the date of the hearing.
(c) On motion of the proposed patient or the attorney representing the state or at the court's discretion, the court may terminate testimony by closed-circuit video teleconferencing under this section at any time during the testimony and require the physician or nonphysician mental health professional to testify in person.
(d) A recording of the testimony under Subsection (a) shall be made and preserved with the court's record of the hearing.
Floor Amendment No. 5
Amend SB 1182 by inserting the following new SECTION, appropriately numbered, and numbering subsequent SECTIONS accordingly:
Friday, May 30, 2003 SENATE JOURNAL 3779
SECTION _____. Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.0224 to read as follows:
Sec. 531.0224. MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES. (a) To ensure appropriate delivery of mental health and substance abuse services, the commission shall regularly evaluate program contractors and subcontractors that provide or arrange for the services for persons enrolled in:
(1) the Medicaid managed care program; and
(2) the state child health plan program.
(b) The commission shall monitor:
(1) penetration rates, as they relate to mental health and substance abuse services provided by or through contractors and subcontractors;
(2) utilization rates, as they relate to mental health and substance abuse services provided by or through contactors and subcontractors; and
(3) provider networks used by contractors and subcontractors to provide mental health or substance abuse services.
The amendments were read.
Senator Deuell moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1182 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Deuell, Chair; West, Lindsay, Carona, and Shapleigh.
SENATE BILL 1000 WITH HOUSE AMENDMENT
Senator West called SBi1000 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Floor Amendment No. 1
Amend SB 1000 as follows:
(1)iiIn SECTION 1 of the bill, in the first sentence of Subsection (a), Section 2113.108, Government Code, as added by the bill (House committee printing, page 1, line 9), between "(a) A state agency" and "may not use appropriated", insert "other than the offices of the attorney general and comptroller".
(2)iiStrike existing SECTION 2 of the bill (House committee printing, page 2, lines 4-22) and substitute the following:
SECTIONi2.iiChapter 323, Government Code, is amended by adding Section 323.020 to read as follows:
3780 78th Legislature — Regular Session 82nd Day
Sec.i323.020.iiCONTRACTS TO PERFORM STATISTICAL OR DEMOGRAPHIC ANALYSIS; CONFIDENTIALITY. (a) Except for Subsection (b), this section does not apply in relation to a statistical or demographic analysis of information related to the redistricting process.
(b)iiThe council may determine whether and the extent to which council resources are available to perform or assist a state agency in performing a statistical or demographic analysis of information as described by Section 2113.108.
(c)iiExcept as provided by this section, information that the council acquires or produces in relation to a statistical or demographic analysis described by Section 2113.108 is confidential and not public information subject to Chapter 552, including:
(1)iiany information that identifies or tends to identify an individual or other entity that submitted information or that was asked to submit information for the analysis;
(2)iiworking drafts and working papers developed in performing the analysis;
(3)iicontracts and subcontracts entered into for purposes of performing the analysis;
(4)iiinternal and interagency correspondence sent or received in the course of performing the analysis;
(5)iimemoranda of understanding entered into in relation to performing the analysis; and
(6)iidata, data files, databases, computer coding, computer specification programs, data use agreements, and data dictionaries acquired or used in performing the analysis.
(d)iiWithout regard to whether the council collects information for purposes of performing a statistical or demographic analysis of information as described by Section 2113.108 indirectly through the state agency or directly from another governmental or nongovernmental entity, an individual or other entity that voluntarily provides information to the state agency or to the council for purposes of the analysis does not waive any exception from required disclosure or any privilege not to disclose the information, and the character of the information as privileged or excepted from required disclosure is not affected by that action of the individual or other entity.
(e)iiA final report containing a statistical or demographic analysis of information as described by Section 2113.108, a cover letter or cover memorandum for the final report, and an announcement that the final report is available are not confidential and are subject to required public disclosure under Chapter 552 except to the extent that the final report, cover letter or cover memorandum, or announcement contains information that identifies or tends to identify an individual or entity other than information that names a staff member who performed work in relation to performing the analysis or that names government officials on a letterhead.
(f)iiNotwithstanding Subsection (c)(3), a contract between the council and a state agency under Section 2113.108 and the names of the staff members who perform work in relation to performing the analysis under the contract are not confidential. A contract between the council and a state agency under Section 2113.108 is public information subject to Chapter 552.
Friday, May 30, 2003 SENATE JOURNAL 3781
(g)iiInformation that an individual or other entity submits for the purpose of a statistical or demographic analysis of information performed by the council under Section 2113.108 may not be used against the individual or other entity in a state agency enforcement proceeding. This subsection does not affect the ability of a state agency to obtain the information by other means and to use the information, if obtained by other means, in a state agency enforcement proceeding.
(3)iiAdd the following new SECTION 3 of the bill and renumber existing SECTION 3 of the bill as SECTION 4 of the bill:
SECTIONi3.iiSection 552.112, Government Code, is amended by adding Subsection (c) to read as follows:
(c)iiInformation is excepted from the requirements of Section 552.021 if it is information submitted by an individual or other entity to the Texas Legislative Council, or to any state agency or department overseen by the Finance Commission of Texas and the information has been or will be sent to the Texas Legislative Council, for the purpose of performing a statistical or demographic analysis of information subject to Section 323.020. However, this subsection does not except from the requirements of Section 552.021 information that does not identify or tend to identify an individual or other entity and that is subject to required public disclosure under Section 323.020(e).
The amendment was read.
Senator West moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1000 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators West, Chair; Armbrister, Harris, Whitmire, and Duncan.
SENATE BILL 264 WITH HOUSE AMENDMENTS
Senator Lucio called SBi264 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 264 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas Department of Housing and Community Affairs.
3782 78th Legislature — Regular Session 82nd Day
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 2306.001, Government Code, is amended to read as follows:
Sec.i2306.001.iiPURPOSES. The purposes of the department are to:
(1)iiassist local governments in:
(A)iiproviding essential public services for their residents; and
(B)iiovercoming financial, social, and environmental problems;
(2)iiprovide for the housing needs of individuals and families of low, very low, and extremely low income and families of moderate income;
(3)iicontribute to the preservation, development, and redevelopment of neighborhoods and communities, including cooperation in the preservation of government-assisted housing occupied by individuals and families of very low and extremely low income;
(4)iiassist the governor and the legislature in coordinating federal and state programs affecting local government;
(5)iiinform state officials and the public of the needs of local government;
[and]
(6)iiserve as the lead agency for:
(A)iiaddressing at the state level the problem of homelessness in this state;
(B)iicoordinating interagency efforts to address homelessness; and
(C)iiaddressing at the state level and coordinating interagency efforts to
address any problem associated with homelessness, including hunger; and [.]
(7)i[(6)]iiserve as a source of information to the public regarding all
affordable housing resources and community support services in the state.
SECTIONi2.iiSection 2306.004(14), Government Code, is amended to read as follows:
(14)ii"Housing sponsor" means:
(A)iian individual, including an individual or family of low and very
low income or family of moderate income, joint venture, partnership, limited
partnership, trust, firm, corporation, or cooperative that is approved by the department
as qualified to own, construct, acquire, rehabilitate, operate, manage, or maintain a
housing development, subject to the regulatory powers of the department and other
terms and conditions in this chapter; [or]
(B)iiin an economically depressed or blighted area, or in a federally assisted new community located within a home-rule municipality, the term may include an individual or family whose income exceeds the moderate income level if at least 90 percent of the total mortgage amount available under a mortgage revenue bond issue is designated for individuals and families of low income or families of moderate income; or
(C)iia public housing authority.
SECTIONi3.iiSection 2306.021(b), Government Code, is amended to read as follows:
(b)iiThe department is composed of:
(1)iithe community affairs division;
(2)iithe housing finance division;
(3)iithe manufactured housing division; and
Friday, May 30, 2003 SENATE JOURNAL 3783
(4)ii[the community development division; and
[(5)]iiany other division created by the director as permitted by [under]
Section 2306.0521.
SECTIONi4.iiSection 2306.022, Government Code, is amended to read as follows:
Sec.i2306.022.iiAPPLICATION OF SUNSET ACT. The Texas Department of
Housing and Community Affairs is subject to Chapter 325 (Texas Sunset Act).
Unless continued in existence as provided by that chapter, the department is abolished
and this chapter expires September 1, 2007 [2003].
SECTIONi5.iiSection 2306.0661, Government Code, is amended by adding Subsection (f) to read as follows:
(f)iiThe board shall adopt rules governing the topics that may be considered at a public hearing. The rules must require the department to consider the following topics in relation to a proposed housing development:
(1)iithe developer market study;
(2)iithe location;
(3)iithe compliance history of the developer;
(4)iithe financial feasibility;
(5)iithe appropriateness of the development's size and configuration in relation to the housing needs of the community in which the development is located;
(6)iithe development's proximity to other low income housing developments;
(7)iithe availability of adequate public facilities and services;
(8)iithe anticipated impact on local school districts;
(9)iizoning and other land use considerations; and
(10)iiany other topics that the board by rule determines to be appropriate.
SECTIONi6.iiSection 2306.0721(c), Government Code, is amended to read as follows:
(c)iiThe plan must include:
(1)iian estimate and analysis of the housing needs of the following populations in each uniform state service region:
(A)iiindividuals and families of moderate, low, very low, and extremely low income;
(B)iiindividuals with special needs; and
(C)iihomeless individuals;
(2)iia proposal to use all available housing resources to address the housing needs of the populations described by Subdivision (1) by establishing funding levels for all housing-related programs;
(3)iian estimate of the number of federally assisted housing units available for individuals and families of low and very low income and individuals with special needs in each uniform state service region;
(4)iia description of state programs that govern the use of all available housing resources;
(5)iia resource allocation plan that targets all available housing resources to individuals and families of low and very low income and individuals with special needs in each uniform state service region;
3784 78th Legislature — Regular Session 82nd Day
(6)iia description of the department's efforts to monitor and analyze the unused or underused federal resources of other state agencies for housing-related services and services for homeless individuals and the department's recommendations to ensure the full use by the state of all available federal resources for those services in each uniform state service region;
(7)iistrategies to provide housing for individuals and families with special needs in each uniform state service region;
(8)iia description of the department's efforts to encourage in each uniform state service region the construction of housing units that incorporate energy efficient construction and appliances;
(9)iian estimate and analysis of the housing supply in each uniform state service region;
(10)iian inventory of all publicly and, where possible, privately funded housing resources, including public housing authorities, housing finance corporations, community housing development organizations, and community action agencies;
(11)iistrategies for meeting rural housing needs;
(12)iia biennial action plan for colonias that:
(A)iiaddresses current policy goals for colonia programs, strategies to meet the policy goals, and the projected outcomes with respect to the policy goals; and
(B)iiincludes information on the demand for contract-for-deed conversions, services from self-help centers, consumer education, and other colonia resident services in counties some part of which is within 150 miles of the international border of this state;
(13)iia summary of public comments received at a hearing under this chapter or from another source that concern the demand for colonia resident services described by Subdivision (12); and
(14)iiany other housing-related information that the state is required to include in the one-year action plan of the consolidated plan submitted annually to the United States Department of Housing and Urban Development.
SECTIONi7.iiSection 2306.0722(a), Government Code, is amended to read as follows:
(a)iiBefore preparing the annual low income housing report under Section
2306.072 and the state low income housing plan under Section 2306.0721, the
department shall meet with regional planning commissions created under Chapter
391, Local Government Code, representatives of groups with an interest in low
income housing, nonprofit housing organizations, managers, owners, and developers
of affordable housing, local government officials, [and] residents of low income
housing, and members of the Colonia Resident Advisory Committee. The department
shall obtain the comments and suggestions of the representatives, officials, [and]
residents, and members about the prioritization and allocation of the department's
resources in regard to housing.
SECTIONi8.iiSubchapter D, Chapter 2306, Government Code, is amended by adding Section 2306.082 to read as follows:
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Sec.i2306.082.iiNEGOTIATED RULEMAKING; ALTERNATIVE DISPUTE RESOLUTION. (a) The department shall develop and implement a policy to encourage the use of:
(1)iinegotiated rulemaking procedures under Chapter 2008 for the adoption of department rules; and
(2)iiappropriate alternative dispute resolution procedures under Chapter 2009 to assist in the resolution of internal and external disputes under the department's jurisdiction.
(b)iiThe department'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 department 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 department.
SECTIONi9.iiSection 2306.111, Government Code, is amended by adding Subsections (c-1), (c-2), (d-1), and (i) to read as follows:
(c-1)iiThe following entities are eligible to apply for set-aside funds under Subsection (c):
(1)iinonprofit providers of affordable housing, including community housing development organizations; and
(2)iifor-profit providers of affordable housing.
(c-2)iiIn allocating set-aside funds under Subsection (c), the department may not give preference to nonprofit providers of affordable housing, except as required by federal law.
(d-1)iiFunds or credits are not required to be allocated according to the regional allocation formula under Subsection (d) if:
(1)iithe funds or credits are reserved for contract-for-deed conversions or for set-asides mandated by state or federal law; and
(2)iieach contract-for-deed allocation or set-aside allocation equals not more than 10 percent of the total allocation of funds or credits for the applicable program.
(i)iiThe director shall designate an employee of the department to act as the information officer and as a liaison with the public regarding each application seeking an allocation of housing funds described by this section.
SECTIONi10.iiSections 2306.111(d)-(g), Government Code, are amended to read as follows:
(d)iiThe department shall allocate housing funds provided to the state under the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. Section 12701 et seq.), housing trust funds administered by the department under Sections 2306.201-2306.206, and commitments issued under the federal low income housing tax credit program administered by the department under Subchapter DD to all urban, exurban, and rural areas of each uniform state service region based on a formula developed by the department that is based on the need for housing assistance and the
3786 78th Legislature — Regular Session 82nd Day
(e)iiThe department shall include in its annual low income housing plan under Section 2306.0721:
(1)iithe formula developed by the department under Subsection (d); and
(2)iithe allocation targets established under the formula for the urban, exurban, and rural areas of each uniform state service region.
(f)iiThe department shall include in its annual low income housing report under Section 2306.072 the amounts of funds and credits allocated to the urban, exurban, and rural areas of each uniform state service region in the preceding year for each federal and state program affected by the requirements of Subsection (d).
(g)iiFor all urban, exurban, and rural areas of each uniform state service region, the department shall establish funding priorities to ensure that:
(1)iifunds are awarded to project applicants who are best able to meet
recognized needs for affordable housing, as determined by [the] department rule;
(2)iiwhen practicable and when authorized under Section 42, Internal Revenue Code of 1986 (26 U.S.C. Section 42), the least restrictive funding sources are used to serve the lowest income residents; and
(3)iifunds are awarded based on a project applicant's ability, when consistent with Section 42, Internal Revenue Code of 1986 (26 U.S.C. Section 42), practicable, and economically feasible, to:
(A)iiprovide the greatest number of quality residential units;
(B)iiserve persons with the lowest percent area median family income;
(C)iiextend the duration of the project to serve a continuing public need;
(D)iiuse other local funding sources to minimize the amount of state subsidy needed to complete the project; and
(E)iiprovide integrated, affordable housing for individuals and families with different levels of income.
SECTIONi11.iiSection 2306.1113, Government Code, is amended to read as follows:
Sec.i2306.1113.iiEX PARTE COMMUNICATIONS. (a) During the period
beginning on the date a project application is filed and ending on the date the board
makes a final decision with respect to any approval of that application, a member of
the board [or a member of the advisory committee established under Section
2306.1112] may not communicate with the following persons:
(1)iithe applicant or a related party, as defined by state law, including board rules, and federal law; and
(2)iiany person who is:
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(A)iiactive in the construction, rehabilitation, ownership, or control of the proposed project, including:
(i)iia general partner or contractor; and
(ii)iia principal or affiliate of a general partner or contractor; or
(B)iiemployed as a lobbyist by the applicant or a related party.
(a-1)iiSubject to Subsection (a-2), during the period beginning on the date a project application is filed and ending on the date the board makes a final decision with respect to any approval of that application, an employee of the department may communicate about the application with the following persons:
(1)iithe applicant or a related party, as defined by state law, including board rules, and federal law; and
(2)iiany person who is:
(A)iiactive in the construction, rehabilitation, ownership, or control of the proposed project, including:
(i)iia general partner or contractor; and
(ii)iia principal or affiliate of a general partner or contractor; or
(B)iiemployed as a lobbyist by the applicant or a related party.
(a-2)iiA communication under Subsection (a-1) may be oral or in any written form, including electronic communication through the Internet, and must satisfy the following conditions:
(1)iithe communication must be restricted to technical or administrative matters directly affecting the application;
(2)iithe communication must occur or be received on the premises of the department during established business hours; and
(3)iia record of the communication must be maintained and included with the application for purposes of board review and must contain the following information:
(A)iithe date, time, and means of communication;
(B)iithe names and position titles of the persons involved in the communication and, if applicable, the person's relationship to the applicant;
(C)iithe subject matter of the communication; and
(D)iia summary of any action taken as a result of the communication.
(b)iiNotwithstanding Subsection (a) or (a-1), a board member or department
employee [advisory committee member] may communicate without restriction with a
person listed in Subsection (a) or (a-1) [described by that subsection] at any board
meeting or public hearing held with respect to the application.
SECTIONi12.iiSubchapter F, Chapter 2306, Government Code, is amended by adding Section 2306.1114 to read as follows:
Sec.i2306.1114.iiNOTICE OF RECEIPT OF APPLICATION OR PROPOSED APPLICATION. (a) Not later than the 14th day after the date an application or a proposed application for housing funds described by Section 2306.111 has been filed, the department shall provide written notice of the filing of the application or proposed application to the following persons:
(1)iithe United States representative who represents the community containing the development described in the application;
3788 78th Legislature — Regular Session 82nd Day
(2)iimembers of the legislature who represent the community containing the development described in the application;
(3)iithe presiding officer of the governing body of the political subdivision containing the development described in the application;
(4)iiany member of the governing body of a political subdivision who represents the area containing the development described in the application;
(5)iithe superintendent and the presiding officer of the board of trustees of the school district containing the development described in the application; and
(6)iiany neighborhood organizations on record with the state or county in which the development described in the application is to be located and whose boundaries contain the proposed development site.
(b)iiThe notice provided under Subsection (a) must include the following information:
(1)iithe relevant dates affecting the application, including:
(A)iithe date on which the application was filed;
(B)iithe date or dates on which any hearings on the application will be held; and
(C)iithe date by which a decision on the application will be made;
(2)iia summary of relevant facts associated with the development;
(3)iia summary of any public benefits provided as a result of the development, including rent subsidies and tenant services; and
(4)iithe name and contact information of the employee of the department designated by the director to act as the information officer and liaison with the public regarding the application.
SECTIONi13.iiSection 2306.185, Government Code, is amended by amending Subsections (a) and (e) and adding Subsection (h) to read as follows:
(a)iiThe department shall adopt policies and procedures to ensure that, for a multifamily rental housing development funded through loans, grants, or tax credits under this chapter, the owner of the development:
(1)iikeeps the rents affordable for low income tenants for the longest period that is economically feasible; and
(2)iiprovides regular maintenance to keep the development sanitary, decent, and safe and otherwise complies with the requirements of Section 2306.186.
(e)iiSubsections (c) and (d) and Section 2306.269 apply only to multifamily rental housing developments to which the department is providing one or more of the following forms of assistance:
(1)iia loan or grant in an amount greater than 33 percent of the market value
of the development on the date the recipient completed the construction [took legal
possession] of the development;
(2)iia loan guarantee for a loan in an amount greater than 33 percent of the market value of the development on the date the recipient took legal title to the development; or
(3)iia low income housing tax credit.
(h)iiThe department shall monitor a development owner's compliance with this section.
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SECTIONi14.iiSubchapter H, Chapter 2306, Government Code, is amended by adding Section 2306.186 to read as follows:
Sec.i2306.186.iiMANDATORY DEPOSITS TO FUND NECESSARY REPAIRS. (a) In this section:
(1)ii"Bank trustee" means a bank authorized to do business in this state, with the power to act as trustee.
(2)ii"Department assistance" means any state or federal assistance administered by or through the department, including low income housing tax credits.
(3)ii"First lien lender" means a lender whose lien has first priority.
(4)ii"Reserve account" means an individual account:
(A)iicreated to fund any necessary repairs for a multifamily rental housing development; and
(B)iimaintained by a first lien lender or bank trustee.
(b)iiIf the department is the first lien lender with respect to the development, each owner who receives department assistance for a multifamily rental housing development that contains 25 or more rental units shall deposit annually into a reserve account:
(1)iifor the year 2004:
(A)iinot less than $150 per unit per year for units one to five years old; and
(B)iinot less than $200 per unit per year for units six or more years old; and
(2)iifor each year following the year 2004, the amounts per unit per year as described by Subdivision (1).
(c)iiA land use restriction agreement or restrictive covenant between the owner and the department must require the owner to begin making annual deposits to the reserve account on the date that occupancy of the multifamily rental housing development stabilizes or the date that permanent financing for the development is completely in place, whichever occurs later, and shall continue making deposits until the earliest of the following dates:
(1)iithe date of any involuntary change in ownership of the development;
(2)iithe date on which the owner suffers a total casualty loss with respect to the development or the date on which the development becomes functionally obsolete, if the development cannot be or is not restored;
(3)iithe date on which the development is demolished;
(4)iithe date on which the development ceases to be used as multifamily rental property; or
(5)iithe end of the affordability period specified by the land use restriction agreement or restrictive covenant.
(d)iiWith respect to multifamily rental developments, if the establishment of a reserve fund for repairs has not been required by the first lien lender, the development owner shall set aside the repair reserve amount as a reserve for capital improvements. The reserve must be established for each unit in the development, regardless of the amount of rent charged for the unit.
3790 78th Legislature — Regular Session 82nd Day
(e)iiBeginning with the 11th year after the awarding of any financial assistance for the development by the department, the owner of a multifamily rental housing development shall contract for a third-party physical needs assessment at appropriate intervals that are consistent with lender requirements with respect to the development. If the first lien lender does not require a third-party physical needs assessment or if the department is the first lien lender, the owner shall contract with a third party to conduct a physical needs assessment at least once during each five-year period beginning with the 11th year after the awarding of any financial assistance for the development by the department. The owner of the development shall submit to the department copies of the most recent third-party physical needs assessment conducted on the development, any response by the owner to the assessment, any repairs made in response to the assessment, and information on any necessary changes to the required reserve based on the assessment.
(f)iiThe department may complete necessary repairs if the owner fails to complete the repairs as required by Subsection (e). Payment for those repairs must be made directly by the owner of the development or through a reserve account established for the development under this section.
(g)iiIf notified of the development owner's failure to comply with a local health, safety, or building code, the department may enter on the property and complete any repairs necessary to correct a violation of that code, as identified in the applicable violation report, and may pay for those repairs through a reserve account established for the development under this section.
(h)iiThe duties of the owner of a multifamily rental housing development under this section cease on the date of a voluntary change in ownership of the development, but the subsequent owner of the development is subject to the deposit, inspection, and notification requirements of Subsections (b), (c), (d), and (e).
(i)iiThe first lien lender shall maintain the reserve account. In the event there is no longer a first lien lender, then Subsections (b) and (d) no longer apply.
(j)iiThe department shall adopt rules that:
(1)iiestablish requirements and standards regarding:
(A)iifor first lien lenders and bank trustees:
(i)iimaintenance of reserve accounts and reasonable costs of that maintenance;
(ii)iiasset management;
(iii)iitransfer of money in reserve accounts to the department to fund necessary repairs; and
(iv)iioversight of reserve accounts and the provision of financial data and other information to the department; and
(B)iifor owners, inspections of the multifamily rental housing developments and identification of necessary repairs, including requirements and standards regarding construction, rehabilitation, and occupancy that may enable quicker identification of those repairs;
(2)iiidentify circumstances in which money in the reserve accounts may:
(A)iibe used for expenses other than necessary repairs, including property taxes or insurance; and
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(B)iifall below mandatory deposit levels without resulting in department action;
(3)iidefine the scope of department oversight of reserve accounts and the repair process;
(4)iiprovide the consequences of any failure to make a required deposit, including a definition of good cause, if any, for a failure to make a required deposit;
(5)iispecify or create processes and standards to be used by the department to obtain repairs for developments;
(6)iidefine for purposes of Subsection (c) the date on which occupancy of a development is considered to have stabilized and the date on which permanent financing is considered to be completely in place; and
(7)iiprovide for appointment of a bank trustee as necessary under this section.
(k)iiThe department shall assess an administrative penalty on development owners who fail to contract for the third-party physical needs assessment and make the identified repairs as required by this section. The department may assess the administrative penalty in the same manner as an administrative penalty assessed under Section 2306.6023. The penalty is computed by multiplying $200 by the number of dwelling units in the development and must be paid to the department. The office of the attorney general shall assist the department in the collection of the penalty and the enforcement of this subsection.
(l)iiThis section does not apply to a development for which an owner is required to maintain a reserve account under any other provision of federal or state law.
SECTIONi15.iiSection 2306.252(b), Government Code, is amended to read as follows:
(b)iiThe department, through the center, shall:
(1)iiprovide educational material prepared in plain language to housing advocates, housing sponsors, borrowers, and tenants;
(2)iiprovide technical assistance to nonprofit housing sponsors;
(3)iiassist in the development of housing policy, including the annual state low income housing plan and report and the consolidated plan; and
(4)ii[maintain communication with local governments and act as an advocate
for local governments at the state and federal levels;
[(5)iiassist local governments with advisory and technical services;
[(6)iiprovide financial aid to local governments and combinations of local
governments for programs that are authorized to receive assistance;
[(7)iiprovide information about and referrals for state and federal programs
and services that affect local governments;
[(8)iiadminister, conduct, or jointly sponsor educational and training
programs for local government officials;
[(9)iiconduct research on problems of general concern to local governments;
[(10)iicollect, publish, and distribute information useful to local
governments, including information on:
[(A)iilocal government finances and employment;
[(B)iihousing;
[(C)iipopulation characteristics; and
3792 78th Legislature — Regular Session 82nd Day
[(D)iiland-use patterns;
[(11)iiencourage cooperation among local governments as appropriate;
[(12)iiadvise and inform the governor and the legislature about the affairs of
local governments and recommend necessary action;
[(13)iiassist the governor in coordinating federal and state activities affecting
local governments;
[(14)iiprovide appropriate information regarding:
[(A)iistate responsibilities for programs created under the federal
Economic Opportunity Act of 1964 (42 U.S.C. Section 2701 et seq.);
[(B)iiprograms assigned to the department under the Omnibus Budget
Reconciliation Act of 1981 (Pub. L. No. 97-35); and
[(C)iiother federal acts creating economic opportunity programs
assigned to the department;
[(15)iidevelop a consumer education program to educate consumers on
executory contract transactions for the conveyance of real property used or to be used
as the consumer's residence;
[(16)iiadopt rules that are necessary and proper to carry out programs and
responsibilities assigned by the legislature or the governor;
[(17)]iiprovide, in cooperation with the state energy conservation office, the
Texas [Natural Resource Conservation] Commission on Environmental Quality, and
other governmental entities, information on the use of sustainable and energy efficient
housing construction products and assist local governments and nonprofits in
identifying information on sustainable and energy efficient housing construction and
energy efficient resources and techniques[; and
[(18)iiperform other duties relating to local governments that are assigned by
the legislature or the governor].
SECTIONi16.iiSubchapter P, Chapter 2306, Government Code, is amended by adding Section 2306.359 to read as follows:
Sec.i2306.359.iiISSUANCE OF PRIVATE ACTIVITY BONDS. (a) In evaluating an application for an issuance of private activity bonds, the department shall score and rank the application using a point system based on criteria that are adopted by the department, including criteria:
(1)iiregarding:
(A)iithe income levels of tenants of the development, consistent with the funding priorities provided by Section 1372.0321;
(B)iithe rent levels of the units;
(C)iithe level of community support for the application;
(D)iithe period of guaranteed affordability for low income tenants;
(E)iithe cost per unit of the development;
(F)iithe size, quality, and amenities of the units;
(G)iithe services to be provided to tenants of the development;
(H)iithe commitment of development funding by local political subdivisions that enables additional units for individuals and families of very low income; and
(I)iiother criteria as developed by the board; and
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(2)iiimposing penalties on applicants who have requested extensions of department deadlines relating to developments supported by an issuance of private activity bonds made in the application round preceding the current round.
(b)iiThe department shall make available on its website details of the scoring system used by the department to score applications.
(c)iiThe department shall underwrite the applications by determining:
(1)iithat the general contractor's profit, overhead, and general requirements are within the maximum limit published by the department;
(2)iithat the developer fee for the proposed project does not exceed the maximum amount allowed by the department; and
(3)iiif applicable, the amount of tax credits available to the proposed development.
(d)iiIn adopting criteria for underwriting applications under this section, the department shall attach additional weight to criteria that will determine the maximum amount that can be awarded that will:
(1)iiresult in an issuance of private activity bonds for developments serving the lowest income tenants; and
(2)iiproduce the greatest number of high-quality units committed to remaining affordable to qualified tenants for extended periods.
SECTIONi17.iiSection 2306.589(c), Government Code, is amended to read as follows:
(c)iiThe department may use money in the colonia set-aside fund for specific activities that assist colonias, including:
(1)iithe operation and activities of the self-help centers established under this subchapter;
(2)iireimbursement of colonia resident advisory committee members [and
colonia initiatives advisory committee members] for their reasonable expenses in the
manner provided by Chapter 2110 or the General Appropriations Act; and
(3)iifunding for the provision of water and sewer service connections in accordance with Subsection (b).
SECTIONi18.iiSections 2306.6702(a)(5), (10), and (16), Government Code, are amended to read as follows:
(5)ii"At-risk development" means a development that:
(A)iihas received [receives] the benefit of a subsidy in the form of a
below-market interest rate loan, interest rate reduction, rental subsidy, Section 8
housing assistance payment, rental supplement payment, [or] rental assistance
payment, or equity incentive under the following federal laws, as applicable:
(i)iiSections 221(d)(3) and (5), National Housing Act (12 U.S.C. Section 1715l);
(ii)iiSection 236, National Housing Act (12 U.S.C. Section 1715z-1);
(iii)iiSection 202, Housing Act of 1959 (12 U.S.C. Section 1701q);
(iv)iiSection 101, Housing and Urban Development Act of 1965 (12 U.S.C. Section 1701s);
3794 78th Legislature — Regular Session 82nd Day
(v)iithe Section 8 Additional Assistance Program for housing developments with HUD-Insured and HUD-Held Mortgages administered by the United States Department of Housing and Urban Development;
(vi)iithe Section 8 Housing Assistance Program for the Disposition
of HUD-Owned Projects administered by the United States Department of Housing
and Urban Development; [or]
(vii)iiSections 514, 515, and 516, Housing Act of 1949 (42 U.S.C. Sections 1484, 1485, and 1486); or
(viii)iiSection 42, Internal Revenue Code of 1986 (26 U.S.C. Section 42); and
(B)iiis subject to the following conditions:
(i)iithe stipulation to maintain affordability in the contract granting the subsidy is nearing expiration; or
(ii)iithe federally insured mortgage on the development is eligible for prepayment or is nearing the end of its term.
(10)ii"Qualified allocation plan" means a plan adopted by the board under this subchapter that:
(A)iiprovides the threshold, scoring, and underwriting criteria based on housing priorities of the department that are appropriate to local conditions;
(B)iiconsistent with Section 2306.6710(e), gives preference in housing tax credit allocations to developments that, as compared to the other developments:
(i)iiwhen practicable and feasible based on documented, committed, and available third-party funding sources, serve the lowest income tenants per housing tax credit; and
(ii)iiproduce [are affordable to qualified tenants] for the longest
economically feasible period the greatest number of high quality units committed to
remaining affordable to any tenants who are income-eligible under the low income
housing tax credit program; and
(C)iiprovides a procedure for the department, the department's agent, or another private contractor of the department to use in monitoring compliance with the qualified allocation plan and this subchapter.
(16)ii"Unit" means any residential rental unit in a development consisting of
an accommodation, including a single room used as an accommodation on a
non-transient basis, that contains [separate and] complete physical facilities and
fixtures for living, sleeping, eating, cooking, and sanitation.
SECTIONi19.iiSection 2306.6703, Government Code, is amended to read as follows:
Sec.i2306.6703.iiINELIGIBILITY FOR CONSIDERATION. (a) An application is ineligible for consideration under the low income housing tax credit program if:
(1)iiat the time of application or at any time during the two-year period preceding the date the application round begins, the applicant or a related party is or has been:
(A)iia member of the board; or
(B)iithe director, a deputy director, the director of housing programs, the
director of compliance, the director of underwriting, or the low income housing tax
credit program manager employed by the department; [or]
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(2)iithe applicant proposes to replace in less than 15 years any private activity bond financing of the development described by the application, unless:
(A)iithe applicant proposes to maintain for a period of 30 years or more
100 percent of the development units supported by [low income] housing tax credits
as rent-restricted and exclusively for occupancy by individuals and families earning
not more than 50 percent of the area median income, adjusted for family size; and
(B)iiat least one-third of all the units in the development are public housing units or Section 8 project-based units;
(3)iithe applicant proposes to construct a new development that is located one linear mile or less from a development that:
(A)iiserves the same type of household as the new development, regardless of whether the developments serve families, elderly individuals, or another type of household;
(B)iihas received an allocation of housing tax credits for new construction at any time during the three-year period preceding the date the application round begins; and
(C)iihas not been withdrawn or terminated from the low income housing tax credit program; or
(4)iithe development is located in a municipality or, if located outside a municipality, a county that has more than twice the state average of units per capita supported by housing tax credits or private activity bonds, unless the applicant:
(A)iihas obtained prior approval of the development from the governing body of the appropriate municipality or county containing the development; and
(B)iihas included in the application a written statement of support from that governing body referencing this section and authorizing an allocation of housing tax credits for the development.
(b)iiSubsection (a)(3) does not apply to a development:
(1)iithat is using:
(A)iifederal HOPE VI funds received through the United States Department of Housing and Urban Development; or
(B)iilocally approved funds received from a public improvement district or a tax increment financing district; or
(2)iithat is located in a county with a population of less than one million.
SECTIONi20.iiSection 2306.6704, Government Code, is amended by adding Subsection (b-1) to read as follows:
(b-1)iiThe preapplication process must require the applicant to provide the department with evidence that the applicant has notified the following entities with respect to the filing of the application:
(1)iiany neighborhood organizations on record with the state or county in which the development is to be located and whose boundaries contain the proposed development site;
(2)iithe superintendent and the presiding officer of the board of trustees of the school district containing the development;
(3)iithe presiding officer of the governing body of any municipality containing the development and all elected members of that body;
3796 78th Legislature — Regular Session 82nd Day
(4)iithe presiding officer of the governing body of the county containing the development and all elected members of that body; and
(5)iithe state senator and state representative of the district containing the development.
SECTIONi21.iiSection 2306.6705, Government Code, is amended to read as follows:
Sec.i2306.6705.iiGENERAL APPLICATION REQUIREMENTS. An application must contain at a minimum the following written, detailed information in a form prescribed by the board:
(1)iia description of:
(A)iithe financing plan for the development, including any nontraditional financing arrangements;
(B)iithe use of funds with respect to the development;
(C)iithe funding sources for the development, including:
(i)iiconstruction, permanent, and bridge loans; and
(ii)iirents, operating subsidies, and replacement reserves; and
(D)iithe commitment status of the funding sources for the development;
(2)iiif syndication costs are included in the eligible basis, a justification of the syndication costs for each cost category by an attorney or accountant specializing in tax matters;
(3)iifrom a syndicator or a financial consultant of the applicant, an estimate of the amount of equity dollars expected to be raised for the development in conjunction with the amount of housing tax credits requested for allocation to the applicant, including:
(A)iipay-in schedules; and
(B)iisyndicator consulting fees and other syndication costs;
(4)iiif rental assistance, an operating subsidy, or an annuity is proposed for the development, any related contract or other agreement securing those funds and an identification of:
(A)iithe source and annual amount of the funds;
(B)iithe number of units receiving the funds; and
(C)iithe term and expiration date of the contract or other agreement;
(5)iiif the development is located within the boundaries of a political subdivision with a zoning ordinance, evidence in the form of a letter from the chief executive officer of the political subdivision or from another local official with jurisdiction over zoning matters that states that:
(A)iithe development is permitted under the provisions of the ordinance that apply to the location of the development; or
(B)iithe applicant is in the process of seeking the appropriate zoning and has signed and provided to the political subdivision a release agreeing to hold the political subdivision and all other parties harmless in the event that the appropriate zoning is denied;
(6)iiif an occupied development is proposed for rehabilitation:
(A)iian explanation of the process used to notify and consult with the tenants in preparing the application;
(B)iia relocation plan outlining:
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(i)iirelocation requirements; and
(ii)iia budget with an identified funding source; and
(C)iiif applicable, evidence that the relocation plan has been submitted to the appropriate local agency;
(7)iia certification of the applicant's compliance with appropriate state and
federal laws, as required by other state law or by the board; [and]
(8)iiany other information required by the board in the qualified allocation plan; and
(9)iievidence that the applicant has notified the following entities with respect to the filing of the application:
(A)iiany neighborhood organizations on record with the state or county in which the development is to be located and whose boundaries contain the proposed development site;
(B)iithe superintendent and the presiding officer of the board of trustees of the school district containing the development;
(C)iithe presiding officer of the governing body of any municipality containing the development and all elected members of that body;
(D)iithe presiding officer of the governing body of the county containing the development and all elected members of that body; and
(E)iithe state senator and state representative of the district containing the development.
SECTIONi22.iiSubchapter DD, Chapter 2306, Government Code, is amended by adding Section 2306.67055 to read as follows:
Sec.i2306.67055.iiMARKET ANALYSIS. (a) A market analysis submitted in conjunction with an application for housing tax credits must:
(1)iibe prepared by a market analyst approved by the department; and
(2)iiinclude an assessment of other developments that are supported by housing tax credits within the market area.
(b)iiThe department, through the qualified allocation plan, shall develop:
(1)iia process for approving market analysts; and
(2)iia methodology for determining the market area to be examined in a market analysis.
SECTIONi23.iiSection 2306.6710, Government Code, is amended by amending Subsections (b), (d), and (e) and adding Subsections (f) and (g) to read as follows:
(b)iiIf an application satisfies the threshold criteria, the department shall score and rank the application using a point system that:
(1)iiprioritizes in descending order criteria [based on criteria that are adapted
to regional market conditions and adopted by the department, including criteria:
[(1)]iiregarding:
(A)iifinancial feasibility of [the income levels of tenants of] the
development based on the supporting financial data required in the application that
will include a project underwriting pro forma from the permanent or construction
lender;
(B)iiquantifiable community participation with respect to the development, evaluated on the basis of written statements from:
3798 78th Legislature — Regular Session 82nd Day
(i)iiany neighborhood organizations on record with the state or county in which the development is to be located and whose boundaries contain the proposed development site; and
(ii)iithe superintendent or the presiding officer of the board of
trustees of the school district containing the development [the rent levels of the units];
(C)iithe income levels of tenants of the development [period of
guaranteed affordability for low income tenants];
(D)iithe size and quality of the units [cost by square foot of the
development];
(E)iithe commitment of development funding by local political
subdivisions [size, quality, and amenities of the units];
(F)iithe level of community support for the application, evaluated on the
basis of written statements from state elected officials [the services to be provided to
tenants of the development];
(G)iithe rent levels of the units [commitment of development funding by
local political subdivisions that enables additional units for individuals and families of
very low income]; [and]
(H)iithe cost of the development by square foot [level of community
support for the application, evaluated on the basis of written statements of support
from local and state elected officials representing constituents in areas that include the
location of the development]; and
(I)iithe services to be provided to tenants of the development; and
(2)iiuses criteria imposing penalties on applicants or affiliates who have requested extensions of department deadlines relating to developments supported by housing tax credit allocations made in the application round preceding the current round or a developer or principal of the applicant that has been removed by the lender, equity provider, or limited partners for its failure to perform its obligations under the loan documents or limited partnership agreement.
(d)iiThe department shall underwrite the applications ranked under Subsection (b) beginning with the applications with the highest scores in each region described by Section 2306.111(d) and in each set-aside category described in the qualified allocation plan. Based on application rankings, the department shall continue to underwrite applications until the department has processed enough applications satisfying the department's underwriting criteria to enable the allocation of all available housing tax credits according to regional allocation goals and set-aside categories. To enable the board to establish an applications waiting list under Section 2306.6711, the department shall underwrite as many additional applications as the board considers necessary to ensure that all available housing tax credits are allocated within the period required by law. The department shall underwrite an application solely to determine an appropriate level of housing tax credits. In determining an appropriate level of housing tax credits, the department shall determine that the cost of the development does not exceed acceptable cost parameters as established by historical final cost certifications of all previous housing tax credit allocations.
Friday, May 30, 2003 SENATE JOURNAL 3799
(e)iiIn [adopting criteria for] scoring [and underwriting] applications for purposes
of housing tax credit allocations, the department shall award [attach], consistent with
Section 42, Internal Revenue Code of 1986 (26 U.S.C. Section 42), preference points
to a development that [the most weight to criteria that] will:
(1)iiwhen practicable and feasible based on documented, committed, and
available third-party funding sources, serve [result in an allocation of housing tax
credits for developments serving] the lowest income tenants per housing tax credit, if
the development is to be located outside a qualified census tract; and
(2)iiproduce for the longest economically feasible period the greatest number
of high quality units committed to remaining affordable to any [qualified] tenants who
are income-eligible under the low income housing tax credit program [for extended
periods].
(f)iiIn evaluating the level of community support for an application under Subsection (b)(1)(F), the department shall award:
(1)iipositive points for positive written statements received;
(2)iinegative points for negative written statements received; and
(3)iizero points for neutral statements received.
(g)iiIn awarding points under Subsection (f), the department shall give equal weight to each written statement received.
SECTIONi24.iiSection 2306.6711, Government Code, is amended by amending Subsection (b) and adding Subsection (f) to read as follows:
(b)iiNot later than the deadline specified in the qualified allocation plan, the
board shall issue commitments for available housing tax credits based on the
application evaluation process provided by Section 2306.6710. The board may not
allocate to an applicant housing tax credits in any unnecessary amount, as determined
by the department's underwriting policy and by federal law, and in any event may not
allocate to the applicant housing tax credits in an amount greater than $2 [$1.6]
million in a single application round.
(f)iiThe board may allocate housing tax credits to more than one development in a single community, as defined by department rule, in the same calendar year only if the developments are or will be located more than one linear mile apart.
SECTIONi25.iiSection 2306.6716(b), Government Code, is amended to read as follows:
(b)iiThe department shall publish [not later than July 1 of] each year an updated
[a] schedule of application fees that specifies the amount to be charged at each stage
of the application process.
SECTIONi26.iiSection 2306.6717(b), Government Code, is amended to read as follows:
(b)iiThe department shall make available on the department's website [provide]
information regarding the low income housing tax credit program, including notice
regarding public hearings, [board] meetings, [and] the opening and closing dates for
applications, submitted applications, and applications approved for underwriting and
recommended to the board, and shall provide that information to:
(1)iilocally affected community groups;
(2)iilocal and state elected officials;
(3)iilocal housing departments;
3800 78th Legislature — Regular Session 82nd Day
(4)iiany appropriate [(2)] newspapers of general or limited circulation that
serve the community in which the development is to be located;
(5)i[(3)]iinonprofit and for-profit organizations;
(6)i[(4)]iion-site property managers of occupied developments that are the
subject of applications for posting in prominent locations in those developments; and
(7)i[(5)]iiany other interested persons and [, including] community groups
that [, who] request the information.
SECTIONi27.iiSection 2306.6725(b), Government Code, is amended to read as follows:
(b)iiThe department shall provide appropriate incentives as determined through the qualified allocation plan to reward applicants who agree to:
(1)iiequip the property that is the basis of the application with energy saving devices that meet the standards established by the state energy conservation office or to provide to a qualified nonprofit organization or tenant organization a right of first refusal to purchase the property at the minimum price provided in, and in accordance with the requirements of, Section 42(i)(7), Internal Revenue Code of 1986 (26 U.S.C. Section 42(i)(7)); and
(2)iilocate the development in a census tract in which there are no other existing developments supported by housing tax credits.
SECTIONi28.iiSection 1372.0231, Government Code, is amended by amending Subsection (b) and adding Subsection (h) to read as follows:
(b)iiWith respect to the amount of the state ceiling set aside under Subsection
(a)(1), the board shall grant reservations at the direction of the Texas Department of
Housing and Community Affairs as provided by Section 2306.359 and [:
[(1)iiin the order determined by the board by lot; and
[(2)]iiin a manner that ensures that:
(1)i[(A)]iithe set-aside amount is used for proposed projects that are located
throughout the state; and
(2)i[(B)]iinot more than 50 percent of the set-aside amount is used for
proposed projects that are located in qualified census tracts as defined by Section
143(j), Internal Revenue Code of 1986.
(h)iiAllocations by the board at the direction of the Texas Department of Housing and Community Affairs under Subsection (b) are subject to review and approval by the board as provided by Section 1231.041.
SECTIONi29.iiSection 1372.0321, Government Code, as added by Chapters 1367 and 1420, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:
Sec.i1372.0321.iiPRIORITIES FOR RESERVATIONS AMONG ISSUERS OF
QUALIFIED RESIDENTIAL RENTAL PROJECT ISSUES. (a) In granting
reservations to issuers of qualified residential rental project issues, the board shall[:
[(1)]iigive first priority to:
(1)i[(A)]iiprojects in which:
(A)ii50i[100]iipercent of the residential units in the project [projects]
are:
Friday, May 30, 2003 SENATE JOURNAL 3801
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 50 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 50 percent of the area median income; and
(B)iithe remaining 50 percent of the residential units in the project are:
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 60 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 60 percent of the area median income;
(2)iiprojects in which:
(A)ii15 percent of the residential units in the project are:
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 30 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 30 percent of the area median income; and
(B)iithe remaining 85 percent of the residential units in the project are:
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 60 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 60 percent of the area median income;
(3)iiprojects:
(A)iiin which 100 percent of the residential units in the project are:
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 60 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 60 percent of the area median income; and
(B)iiwhich are located in a census tract in which the median income, based on the most recent information published by the Bureau of the Census, is higher than the median income for the county, metropolitan statistical area, or primary metropolitan statistical area in which the census tract is located as established by the United States Department of Housing and Urban Development; or
(4)i[(B)]iion or after June 1, projects that are located in counties,
metropolitan statistical areas, or primary metropolitan statistical areas with area
median family incomes at or below the statewide median family income established
by the United States Department of Housing and Urban Development.
3802 78th Legislature — Regular Session 82nd Day
(a-1)iiIn granting reservations to issuers of qualified residential rental project
issues, the board shall [;
[(2)]iigive second priority to projects in which 100 percent of the residential
units in the project [projects] are:
(1)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 60 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(2)iireserved for families and individuals earning not more than 60 percent of the area median income.
(a-2)iiIn granting reservations to issuers of qualified residential rental project
issues, the board shall [; and
[(3)]iigive third priority to any other qualified residential rental project.
(b)iiThe board may not reserve a portion of the state ceiling for a first or second
priority project described by this section [Subsection (a)] unless the board receives
evidence that an application has been filed with the Texas Department of Housing and
Community Affairs for the low-income housing tax credit that is available for
multifamily transactions that are at least 51 percent financed by tax-exempt private
activity bonds.
SECTIONi30.ii(a)iiExcept as otherwise provided by this section, the changes in law made by this Act relating to the awarding of financial assistance administered by the Texas Department of Housing and Community Affairs apply only to an application for that assistance submitted on or after the effective date of this Act.
(b)iiThe Texas Department of Housing and Community Affairs shall adopt the rules required by Section 2306.186, Government Code, as added by this Act, not later than December 1, 2003.
(c)iiThe change in law made by Section 2306.186, Government Code, as added by this Act, applies only to multifamily rental housing developments that receive assistance from the Texas Department of Housing and Community Affairs on or after January 1, 2004.
(d)iiThe change in law made by this Act in amending Chapter 1372, Government Code, applies only to an application for an amount of the state ceiling set aside for issuers of qualified residential rental project bonds in a year beginning on or after January 1, 2004. An application for an amount of the state ceiling set aside for issuers of qualified residential rental project bonds in 2003 is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.
SECTIONi31.iiThe following provisions of the Government Code are repealed:
(1)iiSections 2306.072(d) and 2306.185(g);
(2)iiSection 2306.590, as added by Chapter 1367, Acts of the 77th Legislature, Regular Session, 2001; and
(3)iiSections 2306.591 and 2306.6732.
SECTIONi32.iiThis Act takes effect September 1, 2003.
Floor Amendment No. 1
Amend CSSB 264 as follows:
1) On page 3, lines 4-5, strike "; or (C) a public housing authority".
Friday, May 30, 2003 SENATE JOURNAL 3803
2) On page 29, line 15, after the semicolon, strike "or" and insert the following:
"(C) funds provided to the state under Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. Section 12701 et seq.);
(D) funds provided to the state and participating jurisdictions the Housing and Community Development Act of 1974 (42 U.S.C. Section 5301 et seq.); or"
3) On page 36, lines 11-13, strike "The department shall underwrite an application solely to determine an appropriate level of housing tax credits" and substitute "The department shall underwrite an application to determine the financial feasibility of the development and an appropriate level of housing tax credits".
4) On page 38, line 5, insert the following sentence after the period: "This subsection applies only to communities contained within counties with populations in excess of 1 million."
The amendments were read.
Senator Lucio moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 264 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Lucio, Chair; Madla, Nelson, Brimer, and Armbrister.
CONFERENCE COMMITTEE ON HOUSE BILL 425
Senator West called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi425 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi425 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators West, Chair; Harris, Ratliff, Armbrister, and Whitmire.
SENATE BILL 392 WITH HOUSE AMENDMENTS
Senator Williams called SBi392 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer, Senator Armbrister in Chair, laid the bill and the House amendments before the Senate.
3804 78th Legislature — Regular Session 82nd Day
Amendment
Amend SB 392 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to a repeal of exemptions from certain truth-in-taxation provisions for certain conservation and reclamation districts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSections 49.107(g) and 49.108(f), Water Code, are repealed.
SECTIONi2.ii(a) This Act takes effect September 1, 2003.
(b)iiFor the 2003 tax year, the change in law made by this Act applies only to a conservation and reclamation district created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, and governed by Chapter 49, Water Code, that adopts its tax rate on or after the effective date of this Act. For the 2003 tax year, a district that adopts its tax rate before the effective date is governed by the law as it existed when the tax rate was adopted, and that law is continued in effect for that purpose.
Floor Amendment No. 1
Amend CSSB 392 (House committee printing) by striking all below the enacting clause and substituting the following:
SECTIONi1.iiSubchapter H, Chapter 49, Water Code, is amended by adding Section 49.236 to read as follows:
Sec.i49.236.iiNOTICE OF TAX HEARING. (a) Before the board adopts an ad valorem tax rate for the district for debt service, operation and maintenance purposes, or contract purposes, the board shall give notice of each meeting of the board at which the adoption of a tax rate will be considered. The notice must:
(1)iicontain a statement in substantially the following form:
"NOTICE OF PUBLIC HEARING ON TAX RATE
"The (name of the district) will hold a public hearing on a proposed tax rate for the tax year (year of tax levy) on (date and time) at (meeting place). Your individual taxes may increase or decrease, depending on the change in the taxable value of your property in relation to the change in taxable value of all other property and the tax rate that is adopted.
"(Names of all board members and, if a vote was taken, an indication of how each voted on the proposed tax rate and an indication of any absences.)";
(2)iicontain the following information:
(A)iithe district's total adopted tax rate for the preceding year and the proposed tax rate, expressed as an amount per $100;
(B)iithe difference, expressed as an amount per $100 and as a percent increase or decrease, as applicable, in the proposed tax rate compared to the adopted tax rate for the preceding year;
(C)iithe average appraised value of a residence homestead in the district in the preceding year and in the current year; the district's total homestead exemption, other than an exemption available only to disabled persons or persons 65 years of age or older, applicable to that appraised value in each of those years; and the average
Friday, May 30, 2003 SENATE JOURNAL 3805
taxable value of a residence homestead in the district in each of those years, disregarding any homestead exemption available only to disabled persons or persons 65 years of age or older;
(D)iithe amount of tax that would have been imposed by the district in the preceding year on a residence homestead appraised at the average appraised value of a residence homestead in that year, disregarding any homestead exemption available only to disabled persons or persons 65 years of age or older;
(E)iithe amount of tax that would be imposed by the district in the current year on a residence homestead appraised at the average appraised value of a residence homestead in that year, disregarding any homestead exemption available only to disabled persons or persons 65 years of age or older, if the proposed tax rate is adopted; and
(F)iithe difference between the amounts of tax calculated under Paragraphs (D) and (E), expressed in dollars and cents and described as the annual percentage increase or decrease, as applicable, in the tax to be imposed by the district on the average residence homestead in the district in the current year if the proposed tax rate is adopted; and
(3)iicontain a statement in substantially the following form:
"NOTICE OF TAXPAYERS' RIGHT TO ROLLBACK ELECTION
"If taxes on the average residence homestead increase by more than eight percent, the qualified voters of the district by petition may require that an election be held to determine whether to reduce the operation and maintenance tax rate to the rollback tax rate under Section 49.236(d), Water Code."
(b)iiNotice of the hearing shall be:
(1)iipublished at least once in a newspaper having general circulation in the district at least seven days before the date of the hearing; or
(2)iimailed to each owner of taxable property in the district, at the address for notice shown on the most recently certified tax roll of the district, at least 10 days before the date of the hearing.
(c)iiThe notice provided under this section may not be smaller than one-quarter page of a standard-size or tabloid-size newspaper of general circulation, and the headline on the notice must be in 18-point or larger type.
(d)iiIf the governing body of a district adopts a combined debt service, operation and maintenance, and contract tax rate that would impose more than 1.08 times the amount of tax imposed by the district in the preceding year on a residence homestead appraised at the average appraised value of a residence homestead in the district in that year, disregarding any homestead exemption available only to disabled persons or persons 65 years of age or older, the qualified voters of the district by petition may require that an election be held to determine whether or not to reduce the tax rate adopted for the current year to the rollback tax rate in accordance with the procedures provided by Sections 26.07(b) through (g) and 26.081, Tax Code. For purposes of Sections 26.07(b) through (g) and this subsection, the rollback tax rate is the current year's debt service and contract tax rates plus the operation and maintenance tax rate that would impose 1.08 times the amount of the operation and maintenance tax imposed by the district in the preceding year on a residence homestead appraised at
3806 78th Legislature — Regular Session 82nd Day
SECTIONi2.ii(a) This Act takes effect September 1, 2003.
(b)iiFor the 2003 tax year, the change in law made by this Act applies only to a conservation and reclamation district created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, and governed by Chapter 49, Water Code, that adopts its tax rate on or after the effective date of this Act. For the 2003 tax year, a district that adopts its tax rate before the effective date of this Act is governed by the law as it existed when the tax rate was adopted, and that law is continued in effect for that purpose.
The amendments were read.
Senator Williams moved to concur in the House amendments to SBi392.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
CONFERENCE COMMITTEE ON HOUSE BILL 7
Senator Bivins called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi7 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi7 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Bivins, Chair; Nelson, West, Staples, and Zaffirini.
CONFERENCE COMMITTEE ON HOUSE BILL 3459
Senator Bivins called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi3459 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi3459 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Bivins, Chair; Ogden, Zaffirini, Shapiro, and Duncan.
CONFERENCE COMMITTEE ON HOUSE BILL 320
Senator Fraser called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi320 and moved that the request be granted.
Friday, May 30, 2003 SENATE JOURNAL 3807
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi320 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Fraser, Chair; Duncan, Lucio, Bivins, and Shapiro.
CONFERENCE COMMITTEE ON HOUSE BILL 329
Senator Fraser called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi329 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi329 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Fraser, Chair; Jackson, Shapleigh, Brimer, and VanideiPutte.
SENATE BILL 1053 WITH HOUSE AMENDMENT
Senator Duncan called SBi1053 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Committee Amendment No. 1
Amend SBi1053 as follows:
(1)iiOn page 15, line 9 and 10, strike ", as provided by legislative appropriation".
(2)iiOn page 16, line 16, strike "as provided by legislative appropriation".
(3)iiOn page 16, line 19, strike "the terms of the legislative appropriation language." and insert ":
(1)iithe commitment of the state agency to water conservation; and
(2)iithe benefits that will be gained by making the grant.
(c)".
(4)iiOn page 16, line 20 and 21, strike "shall make the determination required by the legislative language" and insert "must find that:
(1)iithe grant funds will supplement rather than replace money of the state agency;
(2)iithe public interest is served by providing the grant; and
(3)iithe grant will further water conservation in the state.
(d)iiIf a state agency is applying for funds that have been provided by legislative appropriation for such state agency, the board shall review the application according to the terms of the legislative appropriation. To approve such grant, the board shall make the determination required by the legislative language".
3808 78th Legislature — Regular Session 82nd Day
(5)iiOn page 16, line 22, strike "(c)" and insert "(e)"
The amendment was read.
Senator Duncan moved to concur in the House amendment to SBi1053.
The motion prevailed by a viva voce vote.
SENATE BILL 585 WITH HOUSE AMENDMENT
Senator Duncan called SBi585 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Floor Amendment No. 1
Amend SBi585 by adding the following appropriately numbered section to read as follows and by renumbering the other sections of the bill appropriately:
SECTION ____. Chapter 756, Health and Safety Code, is amended by adding Subchapter G to read as follows:
SUBCHAPTER G. MUNICIPAL LANDSCAPING SERVICES
Sec.i756.101.iiAUTHORIZATION. To protect the public health, safety, or welfare, a municipality may provide landscaping services, including tree-trimming, tree disposal, remediation, cleanup, and recycling services, to any person who resides or business that operates inside or outside the corporate limits of the municipality only if the governing body of the municipality makes written findings as required by Section 756.102.
Sec.i756.102.iiFINDINGS REQUIRED. The written findings must:
(1)iiidentify the problem requiring the need for providing municipal landscaping services;
(2)iiidentify the public health, safety, or welfare concern;
(3)iidescribe any reasonable actions previously taken to alleviate the problem; and
(4)iispecify a period of definite duration necessary to address the problem.
The amendment was read.
Senator Duncan moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 585 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Duncan, Chair; Averitt, Staples, Armbrister, and Madla.
SENATE BILL 286 WITH HOUSE AMENDMENTS
Senator Shapleigh called SBi286 from the President's table for consideration of the House amendments to the bill.
Friday, May 30, 2003 SENATE JOURNAL 3809
The Presiding Officer laid the bill and the House amendments before the Senate.
Amendment
Amend SB 286 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas Higher Education Coordinating Board.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 61.0211, Education Code, is amended to read as follows:
Sec.i61.0211.iiSUNSET PROVISION. The Texas Higher Education
Coordinating Board 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].
SECTIONi2.iiSection 61.022, Education Code, is amended to read as follows:
Sec.i61.022.iiMEMBERS OF BOARD; APPOINTMENT; TERMS OF
OFFICE. (a) The board shall consist of nine [18] members appointed by the governor
so as to provide representation from all areas of the state with the advice and consent
of the senate, and as the constitution provides. Members of the board serve staggered
six-year terms. The terms of one-third of the members expire August 31 of each
odd-numbered year [Of the initial appointments to the board six shall be for terms
which shall expire August 31, 1967, six for terms which shall expire August 31, 1969,
and six for terms which shall expire on August 31, 1971, or at such time as their
successors are appointed and have qualified. Thereafter, the governor shall appoint
members for terms of six years. Members of the Texas Commission on Higher
Education are eligible for appointment to the board].
(b)iiA board [No] member may not be employed professionally for remuneration
in the field of education during the member's [his] term of office.
SECTIONi3.iiSubsections (b) through (e), Section 61.0222, Education Code, are amended to read as follows:
(b)iiA person may not be a member 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 higher education; or
(2)iithe person's spouse is an officer, manager, or paid consultant of a Texas
trade association in the field of higher education [An officer, employee, or paid
consultant of a Texas trade association in the field of higher education may not be a
member or employee of the board if the person is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary group 17, of the
position classification salary schedule].
3810 78th Legislature — Regular Session 82nd Day
(c)ii[A person who is the spouse of an officer, manager, or paid consultant of a
Texas trade association in the field of higher education may not be a board member
and may not be a board employee who is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary group 17, of the
position classification salary schedule.
[(d)]iiA person may not be [serve as] a member of the board or act as the general
counsel to the board 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 board.
(d)iiIn [(e) For the purposes of] this section, "Texas trade association" means a
[Texas trade association is a nonprofit,] 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.
SECTIONi4.iiSubsections (a) and (c), Section 61.0223, Education Code, are amended to read as follows:
(a)iiIt is a ground for removal from the board that [if] a member:
(1)iidoes not have at the time of taking office [appointment] the
qualifications required by Section 61.0222(a) [of this code];
(2)iidoes not maintain during service on the board the qualifications required
by Section 61.0222(a) [of this code];
(3)iiis ineligible for membership under [violates a prohibition established by]
Section 61.022 or 61.0222 [Section 61.0222(b), (c), or (d) of this code];
(4)iicannot, because of illness or disability, discharge the member's duties
for a substantial part of the member's term [for which the member is appointed
because of illness or disability]; or
(5)iiis absent from more than half of the regularly scheduled board meetings
that the member is eligible to attend during a calendar year without an excuse
approved [unless the absence is excused] by a majority vote of the board.
(c)iiIf the commissioner of higher education has knowledge that a potential
ground for removal exists, the commissioner shall notify the presiding officer
[chairman] of the board of the potential ground. The presiding officer [chairman] 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
commissioner 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.
SECTIONi5.iiSubchapter B, Chapter 61, Education Code, is amended by adding Section 61.0224 to read as follows:
Sec.i61.0224.iiTRAINING OF BOARD MEMBERS. (a)iiA 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)iithe legislation that created the board;
(2)iithe programs operated by the board;
(3)iithe role and functions of the board;
Friday, May 30, 2003 SENATE JOURNAL 3811
(4)iithe rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5)iithe current budget for the board;
(6)iithe results of the most recent formal audit of the board;
(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 board 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.
SECTIONi6.iiSubsections (f) and (g), Section 61.028, Education Code, are amended to read as follows:
(f)iiThe commissioner or the commissioner's designee shall prepare and maintain
a written policy statement that implements [to assure implementation of] a program of
equal employment opportunity to ensure that [under which] all personnel decisions
[transactions] are made without regard to race, color, disability [handicap], sex,
religion, age, or national origin. The policy statement must include:
(1)iipersonnel policies, including policies relating to recruitment, evaluation,
selection, [appointment,] training, and promotion of personnel, that show the intent of
the board to avoid the unlawful employment practices described by Chapter 21, Labor
Code; and
(2)iian [a comprehensive] analysis of the extent to which the composition of
the board's personnel is in accordance with state and federal law and a description of
reasonable methods to achieve compliance with state and federal law [work force that
meets federal and state guidelines;
[(3)iiprocedures by which a determination can be made of significant
underuse in the board's work force of all persons for whom federal or state guidelines
encourage a more equitable balance; and
[(4)iireasonable methods to appropriately address those areas of significant
underuse].
(g)iiThe [A] policy statement [prepared under Subsection (f) of this section]
must:
(1)ii[cover an annual period,] be updated [at least] annually;
(2)iibe reviewed by the state Commission on Human Rights for compliance
with Subsection (f)(1);[,] and
(3)iibe filed with the governor's office.
SECTIONi7.iiSubchapter B, Chapter 61, Education Code, is amended by adding Section 61.0281 to read as follows:
3812 78th Legislature — Regular Session 82nd Day
Sec.i61.0281.iiSTATE EMPLOYEE INCENTIVE PROGRAM. The commissioner of higher education or the commissioner's designee shall provide to board employees information and training on the benefits and methods of participation in the state employee incentive program.
SECTIONi8.iiSection 61.029, Education Code, is amended to read as follows:
Sec.i61.029.iiINTERNAL AUDITOR. (a)iiThe board [commissioner of higher
education] shall appoint an internal auditor for the board. [The appointment of an
internal auditor must be approved by the board.]
(b)iiThe internal auditor shall report directly to the board on all matters, other
than administrative matters, that require the decision of the commissioner of higher
education. [The board by rule may require the internal auditor to submit certain
reports directly to the board.]
(c)iiThe commissioner shall advise the board regarding:
(1)iithe termination or discipline of the internal auditor; and
(2)iithe transfer or reclassification of, or other changes in, the powers or
duties of the internal auditor. [A committee of the board whose primary function is to
oversee the administration of the board shall meet with the internal auditor at least as
frequently as quarterly.]
(d)iiThe internal auditor shall develop an annual audit plan, conduct audits as
specified in the audit plan, and fulfill the other duties required by Chapter 2102,
Government Code [auditor's duties include:
[(1)iithe review and appraisal of the accounting, financial, and operating
activities of the board, including its internal information management; and
[(2)iiappraisal of the board's effectiveness in meeting its statutory duties].
(e)iiThe internal auditor shall review all audit reports with the board and the commissioner.
SECTIONi9.iiSection 61.031, Education Code, is amended to read as follows:
Sec.i61.031.iiPUBLIC INTEREST INFORMATION AND COMPLAINTS. (a)iiThe board shall maintain a file on 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 board;
(3)iithe subject matter of the complaint;
(4)iithe name of each person contacted in relation to the complaint;
(5)iia summary of the results of the review or investigation of the complaint; and
(6)iian explanation of the reason the file was closed, if the board closed the
file without taking action other than to investigate the complaint [prepare information
of public interest describing the functions of the board and the board's procedures by
which complaints are filed with and resolved by the board. The board shall make the
information available to the public and appropriate state agencies].
(b)iiThe board shall provide to the person filing the complaint and to each person
who is a subject of the complaint a copy of the board's policies and procedures
relating to complaint investigation and resolution [keep an information file about each
complaint filed with the board that the board has authority to resolve].
Friday, May 30, 2003 SENATE JOURNAL 3813
(c)iiThe [If a written complaint is filed with the board that the board has authority
to resolve, the] board, at least quarterly [and] until final disposition of the complaint,
shall notify the person filing [parties to] the complaint and each person who is a
subject of the complaint of the status of the investigation [complaint] unless the notice
would jeopardize an undercover investigation.
SECTIONi10.iiSubchapter B, Chapter 61, Education Code, is amended by adding Section 61.033 to read as follows:
Sec.i61.033.iiNEGOTIATED RULEMAKING; ALTERNATIVE DISPUTE RESOLUTION. (a)iiThe 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 board rules; and
(2)iiappropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the board's jurisdiction.
(b)iiThe board'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 board.
SECTIONi11.iiSubchapter B, Chapter 61, Education Code, is amended by adding Section 61.034 to read as follows:
Sec.i61.034.iiEFFECTIVE USE OF TECHNOLOGY. The board shall develop and implement a policy that requires the commissioner of higher education and the staff of the board to research and propose appropriate technological solutions to improve the ability of the agency to perform its mission. The technological solutions must include measures to ensure that the public is able to easily find information about the board through the Internet and that persons who have a reason to use the board's services are able to use the Internet to interact with the board and to access any services that can be provided effectively through the Internet. The policy shall also ensure that proposed technological solutions are cost-effective and developed through the board's planning processes.
SECTIONi12.iiSection 61.051, Education Code, is amended by amending Subsections (a), (j), and (m) and adding Subsections (a-1), (a-2), and (a-3) to read as follows:
(a)iiThe board shall represent the highest authority in the state in matters of public higher education and is charged with the duty to take an active part in promoting quality education in the various regions of the state. The board shall be responsible for assuring that there is no discrimination in the distribution of programs and resources throughout the state on the basis of race, national origin, or sex.
3814 78th Legislature — Regular Session 82nd Day
(a-1)iiThe board shall develop a five-year master plan for higher education in this
state [and update the plan annually]. The five-year plan shall take into account the
resources of private institutions of higher education in this state.
(a-2)iiThe board shall periodically review and revise the five-year master plan developed under Subsection (a-1). As a specific element of its review, the board shall identify and analyze the degree to which the plan reflects the continuing higher education needs of this state, as well as any policy changes necessary to improve overall implementation of the plan and the fiscal impact of those changes. The board shall establish procedures for monitoring the board's implementation of the plan, including an analysis of the degree to which its current activities support implementation of the plan and any change in board rules or practices necessary to improve implementation of the plan. The board shall identify additional strategies necessary to achieve the goals of the plan, emphasizing implementation by institutions of higher education and specific recommendations for the different regions of the state. The board shall notify each institution of higher education of all strategies for implementing the plan.
(a-3)iiThe board shall[:
[(1)]iiinform the legislature on matters pertaining to higher education,
including the state's activities in the Board of Control for Southern Regional
Education,[;] and shall
[(2)]iireport to the legislature not later than [in] January 1 of each
odd-numbered year on the state of higher education in Texas. In the biennial report,
the board shall assess the state's progress in meeting the goals stated in the plan
developed under Subsection (a-1) and shall recommend legislative action to assist the
state in meeting those goals. The report must include the analyses performed in
connection with the board's periodic review under Subsection (a-2).
(j)iiNo off-campus courses for credit may be offered by any public technical
institute, public community college, or public college or university without specific
prior approval of the board. However, any of those institutions may offer a distance
learning course approved by the board with no in-state geographic restrictions if the
course is within the approved curriculum of the institution. To facilitate the delivery of
courses by distance learning and to improve access to those courses, the board shall
encourage collaborative efforts to make the benefits of computer access to educational
opportunities widely available. The board shall maintain a central informational
resource accessible to the general public that provides[, to be called the Texas
Colleges On-Line, on which institutions can place] information relating to [all
computer-accessible] distance learning courses and programs offered for credit by
institutions of higher education and information including computer links, addresses,
or other directions to assist an interested person to obtain additional information
directly from the appropriate institution. The board may not prohibit a public junior
college district from offering a course for credit outside the boundaries of the junior
college district when such course has met the requirements for approval as adopted by
the board. The board shall establish regulations for the coordination of credit activities
of adult and continuing education by public technical institutes, public community
colleges, or public colleges and universities.
Friday, May 30, 2003 SENATE JOURNAL 3815
(m)iiThe board shall publish and distribute materials on admission policies, transferable courses among institutions, financial assistance programs, and other matters of interest to persons choosing an institution in which to enroll. It is the intent of the legislature that materials distributed under this subsection be designed to promote and encourage students to complete high school coursework and aspire to their highest potential by obtaining a degree or certificate from an institution of higher education.
SECTIONi13.iiSection 61.059, Education Code, is amended by amending Subsections (a) and (i) and adding Subsection (i-1) to read as follows:
(a)iiTo finance a system of higher education and to secure an equitable distribution of state funds deemed to be available for higher education, the board shall perform the functions described in this section. Funding policies shall:
(1)iiallocate resources efficiently and provide incentives for programs of superior quality and for institutional diversity;
(2)iiprovide incentives for supporting the five-year master plan developed and revised under Section 61.051; and
(3)iidiscourage [while discouraging] unnecessary duplication of course
offerings between institutions and [as well as discouraging] unnecessary construction
on any campus.
(i)iiThe board shall make continuing studies on its own initiative, on [or upon]
the request of the governor or the Legislative Budget Board, and as otherwise
provided by Subsection (i-1) of the financial needs of public higher education and all
services and activities of the institutions of higher education and issue reports to the
governor and the Legislative Budget Board that result from its studies.
(i-1)iiNot later than January 1 of each odd-numbered year, the board shall make and submit to the legislature findings and recommendations regarding the degree to which the current higher education funding system, including formula funding and any other transfers of legislative appropriations to institutions of higher education, supports the implementation of the five-year master plan developed and revised under Section 61.051. The board may include its findings and recommendations in the biennial report submitted to the legislature under Section 61.051. In its findings, the board must:
(1)iiidentify funding incentives that would encourage implementation of the five-year master plan by institutions of higher education; and
(2)iiassess the accountability of institutions of higher education with respect to legislative appropriations to evaluate institutional allocation of financial resources in accordance with the five-year master plan.
SECTIONi14.iiSubsection (a), Section 61.065, Education Code, is amended to read as follows:
(a)iiThe comptroller of public accounts and the board jointly shall prescribe and periodically update a uniform system of financial accounting and reporting for institutions of higher education, including definitions of the elements of cost on the basis of which appropriations shall be made and financial records shall be maintained. The board may require institutions to report additional financial information as the board considers necessary. In order that the uniform system of financial accounting and reporting shall provide for maximum consistency with the national reporting
3816 78th Legislature — Regular Session 82nd Day
SECTIONi15.iiSection 61.066, Education Code, is amended by adding Subsection (c) to read as follows:
(c)iiThe board shall conduct a study and make findings and recommendations regarding methods for reducing administrative burdens and increasing participation in student financial aid programs to maximize the value of those programs to the state. In conducting the study, the board shall seek input from financial aid officers and student groups at institutions of higher education. Not later than November 1, 2004, the board shall report to the standing committee of each house of the legislature with primary jurisdiction over higher education the board's findings and recommendations for legislative action necessary to consolidate, expand, or otherwise modify existing student financial aid programs. This subsection expires January 1, 2005.
SECTIONi16.iiSection 61.076, Education Code, is amended to read as follows:
Sec.i61.076.iiCOOPERATION BETWEEN STATE AGENCIES OF
EDUCATION. (a)iiIt is the policy of the State of Texas that the entire system of
education supported with public funds be coordinated to provide the citizens with
efficient, effective, and high quality educational services and activities. The board and
the State Board of Education, in conjunction with such other agencies as may be
appropriate, shall ensure that long-range plans and educational programs established
by the boards complement the functioning of the entire system of public education,
extending from early childhood education through postgraduate study. In assuring that
plans and programs are coordinated, the boards shall use the P-16 Council [Joint
Advisory Committee] established under Section 61.077 [of this code].
(b)iiThe P-16 Council [Joint Advisory Committee] shall coordinate plans and
programs of the two boards, including curricula, instructional programs, research, and
other functions as appropriate. This coordination shall include the following areas:
(1)iiequal educational opportunity for all Texans;
(2)iicollege recruitment, with special emphasis on the recruitment of minority students;
(3)iipreparation of high school students for further study at colleges and universities;
(4)iireduction of the dropout rate and dropout prevention;
(5)iiteacher education, recruitment, and retention; [and]
(6)iitesting and assessment; and
(7)iiadult education programs.
SECTIONi17.iiSection 61.077, Education Code, is amended to read as follows:
Sec.i61.077.iiP-16 COUNCIL [JOINT ADVISORY COMMITTEE]. (a) The
P-16 Council [A joint advisory committee] shall advise the Texas Higher Education
Coordinating Board and the State Board of Education in coordinating postsecondary
career and technology activities, career and technology teacher education programs
offered or proposed to be offered in the colleges and universities of this state, and
other relevant matters, including those listed in Section 61.076 [of this code].
Friday, May 30, 2003 SENATE JOURNAL 3817
(b)iiThe council is [committee shall be] composed of the commissioner of
education, the commissioner of higher education, the executive director of the Texas
Workforce Commission, and the executive director of the State Board for Educator
Certification [three members from the State Board of Education, appointed by the
chairman of the board and three members from the Texas Higher Education
Coordinating Board, appointed by the chairman of the board, one member designated
by the presiding officer of the Council on Workforce and Economic Competitiveness,
and one member representing business designated by the chair of the Texas
Partnership for Economic Development]. Existing members of the council may
appoint additional members as the members consider necessary. The position of
presiding officer rotates among the members of the council in the order the members
are listed in this subsection, with each member serving as the presiding officer for one
two-year term [A member of the board shall be designated as chairman of the joint
advisory committee by the chairman of the board].
(c)iiThe council shall meet at least once each calendar quarter and may hold
other meetings as necessary at the call of the presiding officer [committee shall hold
regular annual meetings as called by the chairman]. Each member of the council or the
member's designee shall make a report of the council's activities at least twice
annually to the governing body of the member's agency or, in the case of the
commissioner of education, to the State Board of Education.
(d)i[(b)]iiThe purposes of this council [committee] shall include the following:
(1)iito advise the two boards on the coordination of postsecondary career and technology education and the articulation between postsecondary career and technology education and secondary career and technology education;
(2)iito facilitate the transfer of responsibilities for the administration of postsecondary career and technology education from the State Board of Education to the board in accordance with Section 111(a)(I) of the Carl D. Perkins Vocational Education Act, Public Law 98-524;
(3)iito advise the State Board of Education, when it acts as the State Board for Career and Technology Education, on the following:
(A)iithe transfer of federal funds to the board for allotment to eligible public postsecondary institutions of higher education;
(B)iithe career and technology education funding for projects and institutions as determined by the board when the State Board for Career and Technology Education is required by federal law to endorse such determinations;
(C)iithe development and updating of the state plan for career and technology education and the evaluation of programs, services, and activities of postsecondary career and technology education and such amendments to the state plan for career and technology education as may relate to postsecondary education;
(D)iiother matters related to postsecondary career and technology education; and
(E)iithe coordination of curricula, instructional programs, research, and
other functions as appropriate, including areas listed in Section 61.076 [of this code],
school-to-work and school-to-college transition programs, and professional
development activities; [and]
3818 78th Legislature — Regular Session 82nd Day
(4)iito advise the Council on Workforce and Economic Competitiveness on educational policy issues related to workforce preparation; and
(5)iito examine and make recommendations regarding the alignment of secondary and postsecondary education:
(A)iicurricula; and
(B)iitesting and assessment.
(e)iiSubsection (d)(5) does not require the council to establish curriculum or testing or assessment standards.
SECTIONi18.iiSubsection (a), Section 61.0771, Education Code, is amended to read as follows:
(a)iiThe board, in cooperation with institutions of higher education, shall develop a master plan for the development of distance learning and other applications of instructional electronic technology by institutions of higher education and as necessary may revise the plan. The plan shall include recommendations for:
(1)iithe coordination and integration of distance learning and related telecommunications activities among institutions of higher education and other public or private entities to achieve optimum efficiency and effectiveness in providing necessary services, including identification of the costs and any cost savings to be achieved by the use of distance learning and related activities such as teleconferencing or sharing resources by telecommunications;
(2)iithe development and acquisition of distance learning infrastructure and equipment, including its functions and capabilities, within and among institutions of higher education consistent with the missions of those institutions and the recipients of their services;
(3)iithe establishment of uniform or compatible standards and technologies for distance learning;
(4)iithe training of faculty and staff in the use and operation of distance learning facilities;
(5)iiappropriate applications of distance learning, including the identification of the needs of the student populations to be served;
(6)iipolicies relating to the funding for implementation and administering of distance learning, including interinstitutional funds transfers among institutions providing and receiving distance learning services and formula funding allocations, and recommendations for the appropriate fees for services offered through distance learning;
(7)iirevising regulatory policy relating to public utilities to facilitate distance learning; and
(8)iiany statutory or regulatory changes desirable to promote distance learning or to implement the master plan.
SECTIONi19.iiSubchapter C, Chapter 61, Education Code, is amended by adding Section 61.0902 to read as follows:
Sec.i61.0902.iiPUBLICATION OF PERFORMANCE DATA OF GENERAL ACADEMIC TEACHING INSTITUTIONS. (a)iiThe board shall administer a program to publish performance data provided to the board by general academic teaching institutions under this section.
Friday, May 30, 2003 SENATE JOURNAL 3819
(b)iiNot later than the next November 1 following the completion of an academic year, each general academic teaching institution shall provide to the board one or more reports containing data related to:
(1)iithe qualifications of the entering freshman class for the academic year covered by the report, including:
(A)iithe average Texas Academic Skills Program Test scores of the class;
(B)iithe average scores of the class on each generally recognized test or assessment used in college and university undergraduate admissions, including the Scholastic Assessment Test and the American College Test;
(C)iithe range of scores of the class from the 25th to the 75th percentile on each generally recognized test or assessment used in college and university undergraduate admissions, including the Scholastic Assessment Test and the American College Test;
(D)iithe overall grade point average of the class for the academic year covered by the report;
(E)iithe number of students in the class who graduated in the top 10 percent of the student's high school graduating class; and
(F)iienrollment percentages by ethnicity; and
(2)iistudent performance and institution efficiency, including:
(A)iithe retention rate of full-time students after the completion of one academic year at the institution;
(B)iithe percentage of full-time degree-seeking undergraduate students who earn a baccalaureate degree before the sixth anniversary of the date of the student's first enrollment at the institution;
(C)iithe percentage of lower-division semester credit hours taught by tenured or tenure-track faculty;
(D)iithe percentage of undergraduate classes with fewer than 20 students;
(E)iithe percentage of undergraduate classes with more than 50 students;
(F)iithe student-to-faculty ratio for undergraduate students;
(G)iithe percentage of students receiving financial aid;
(H)iithe average cost of tuition and fees for an undergraduate student enrolled for 12 semester credit hours;
(I)iithe average cost of on-campus room and board for an academic year, excluding summer sessions;
(J)iithe number of disciplines in which master's degrees are offered;
(K)iithe number of disciplines in which doctoral degrees are offered;
(L)iia description of any departments, schools, or certificate or degree programs of the institution that have a statewide or national reputation for excellence; and
(M)iistatistics regarding job placement rates for students awarded certificates or degrees by the institution.
(c)iiEach year the board shall publish and post in a grid format on the board's Internet site the names of the general academic teaching institutions, the performance data required by Subsection (b) for the most recent academic year for which the data
3820 78th Legislature — Regular Session 82nd Day
(d)iiEach general academic teaching institution shall provide a link on the institution's Internet home page to the board's Internet site described by Subsection (c).
(e)iiA general academic teaching institution is not required to report to the board the data required by Subsection (b) if the data is available to the board from another source.
SECTIONi20.iiSubsection (c), Section 61.093, Education Code, is amended to read as follows:
(c)iiMoney appropriated for payment of contracts under the authority of Section
[Sections] 61.092 [and 61.094 of this code] shall be paid to [the] Baylor College of
Medicine [and the Baylor College of Dentistry] as follows:
(1)ii40i[24] percent of the yearly entitlement [of each college] shall be paid
in two equal installments to be made on or before the 25th day of September and
October; and
(2)ii60i[76] percent of the yearly entitlement [of each college] shall be paid
in six [eight] equal installments to be made on or before the 25th day of November,
December, January, February, March, and April[, May, June, July, and August].
SECTIONi21.iiSubsection (a), Section 61.532, Education Code, is amended to read as follows:
(a)iiTo be eligible to receive repayment assistance, a physician must apply to the coordinating board and have completed at least one year of medical practice:
(1)iiin private practice in an economically depressed or rural medically underserved area of the state;
(2)iifor one of the following state agencies:
(A)iiTexas Department of Health;
(B)iiTexas Department of Mental Health and Mental Retardation;
(C)iiTexas Department of Corrections; or
(D)iiTexas Youth Commission; or
(3)iifor an approved family practice residency training program established
under Subchapter I [of this chapter] as a[:
[(A)]iiclinical faculty member and have completed training in an
approved family practice residency training program on or after July 1, 1994[; or
[(B)iiresident].
SECTIONi22.iiSubchapter J, Chapter 61, Education Code, is amended by adding Section 61.540 to read as follows:
Sec.i61.540.iiSERVICE AGREEMENTS ENTERED INTO UNDER FORMER LAW; SAVING PROVISION. (a)iiThis section applies only to a person who entered into a written agreement to perform service as a physician in exchange for loan repayment assistance under this subchapter before September 1, 2003.
Friday, May 30, 2003 SENATE JOURNAL 3821
(b)iiThe agreement continues in effect and this subchapter, as it existed when the person entered into the agreement, is continued in effect for purposes of that agreement until the person satisfies all the conditions of the agreement or repays all amounts due under the agreement if the person does not satisfy the conditions of the agreement.
SECTIONi23.iiSubsection (b), Section 61.822, Education Code, is amended to read as follows:
(b)iiEach institution of higher education shall adopt a core curriculum of no less
than 42 semester credit hours, including specific courses comprising the curriculum.
The core curriculum shall be consistent with the common course numbering
[course-numbering] system approved by the board and with the statement,
recommendations, and rules issued by the board. An institution may have a core
curriculum of other than 42 semester credit hours only if approved by the board.
SECTIONi24.iiSection 61.830, Education Code, is amended to read as follows:
Sec.i61.830.iiPUBLICATION OF GUIDELINES ADDRESSING TRANSFER
PRACTICES. In its course catalogs and on its website, each institution of higher
education shall publish guidelines addressing the practices of the institution regarding
the transfer of course credit. In the guidelines, the institution must identify a course by
using the [any] common course numbering system approved [adopted] by the board.
SECTIONi25.iiSubchapter S, Chapter 61, Education Code, is amended by adding Section 61.832 to read as follows:
Sec.i61.832.iiCOMMON COURSE NUMBERING SYSTEM. (a)iiThe board shall approve a common course numbering system for lower-division courses to facilitate the transfer of those courses among institutions of higher education by promoting consistency in course designation and identification.
(b)iiThe board may approve only a common course numbering system already in common use in this state by institutions of higher education.
(c)iiThe board shall cooperate with institutions of higher education in any additional development or alteration of the common course numbering system, including the taxonomy to be used, and in the development of rules for the administration and applicability of the system.
(d)iiAn institution of higher education shall include in its course listings the applicable course numbers from the common course numbering system approved by the board under this section. For good cause, the board may grant to an institution of higher education an exemption from the requirements of this subsection.
SECTIONi26.iiSections 61.873 and 61.876, Education Code, as added by Chapter 833, Acts of the 76th Legislature, Regular Session, 1999, are amended to read as follows:
Sec.i61.873.iiELIGIBILITY FOR ASSISTANCE. To be eligible to receive loan repayment assistance under this subchapter, a person must:
(1)iihold an associate, baccalaureate, or graduate degree in early childhood development or the equivalent from a public or private institution of higher education accredited by a recognized accrediting agency; and
(2)iihave served for at least one year [enter into an agreement to serve] as,
and be currently serving as, an early childhood child-care worker [as provided by
Section 61.875].
3822 78th Legislature — Regular Session 82nd Day
Sec.i61.876.iiAMOUNT OF REPAYMENT ASSISTANCE; LIMITATIONS.
(a)iiFor each year that a qualified person serves as an early childhood child-care
worker in this state [under an agreement under Section 61.875], the person may
receive loan repayment assistance in an amount not to exceed 15 percent of the total
amount of the person's outstanding student loans, including scheduled interest
payments that would become due if the loan is not prepaid, as of the date [when] the
person begins to receive repayment assistance under this subchapter [enters into the
agreement].
(b)iiThe amount of repayment assistance paid for a year may not exceed the lesser of:
(1)iithe actual amount of the loan payments the person receiving the assistance is required to make for that year; or
(2)iian amount set by the board equal to the maximum amount of resident tuition and required fees paid by a person enrolled as a full-time student at a general academic teaching institution for the most recent academic year, excluding summer sessions.
(c)i[(b)iiThe board may enter into an agreement to provide loan repayment
assistance under Section 61.875 only to the extent money in the trust fund established
by Section 61.878 or money appropriated to the trust fund for future deposit to the
trust fund will be sufficient to provide the repayment assistance as it becomes
payable.] If [that] money will not be sufficient to provide repayment assistance to
each eligible applicant, the board shall select persons to receive repayment assistance
from the eligible applicants according to financial need or on another basis the board
considers reasonable to further the purposes of this subchapter.
(d)i[(c)]iiThe board may determine the manner in which the loan repayment
assistance is to be paid [and shall include provisions governing the manner of
repayment in the agreement]. The board may provide for the payment of a portion of
the repayment assistance in one or more installments before the person completes a
full year of service as an early childhood child-care worker and for the payment of the
remainder of the repayment assistance for that year after the completion of the full
year of service.
SECTIONi27.iiSubchapter T, Chapter 61, Education Code, as added by Chapter 833, Acts of the 76th Legislature, Regular Session, 1999, is amended by adding Section 61.879 to read as follows:
Sec.i61.879.iiSERVICE AGREEMENTS ENTERED INTO UNDER FORMER LAW; SAVING PROVISION. (a)iiThis section applies only to a person who was awarded loan repayment assistance under this subchapter and entered into a written agreement to perform service as an early childhood child-care worker in exchange for that assistance under this subchapter before September 1, 2003.
(b)iiThe agreement continues in effect and this subchapter, as it existed when the person entered into the agreement, is continued in effect for purposes of that agreement until the person satisfies all the conditions of the agreement or repays all amounts due under the agreement if the person does not satisfy the conditions of the agreement.
Friday, May 30, 2003 SENATE JOURNAL 3823
SECTIONi28.iiSections 61.952 and 61.954, Education Code, as added by Chapter 1403, Acts of the 77th Legislature, Regular Session, 2001, are amended to read as follows:
Sec.i61.952.iiELIGIBILITY. To be eligible to receive repayment assistance, an attorney must:
(1)iiapply to the board; and
(2)iihave been [be] employed for at least one year by, and be currently
employed by, [or have been offered employment with] the office of the attorney
general at the time the attorney applies for the assistance[; and
[(3)iienter into an agreement to serve as an attorney with the office of the
attorney general as provided by Section 61.953].
Sec.i61.954.iiMAXIMUM AMOUNT OF REPAYMENT ASSISTANCE
[LIMITATIONS]. (a)iiFor each year that an attorney serves as an attorney with the
office of the attorney general [under an agreement under Section 61.953], the attorney
may receive repayment assistance under this subchapter in an amount not to exceed
$6,000.
(b)iiAn attorney may not receive repayment assistance under this subchapter for more than three years.
SECTIONi29.iiSubchapter X, Chapter 61, Education Code, as added by Chapter 148, Acts of the 77th Legislature, Regular Session, 2001, is amended by adding Section 61.955 to read as follows:
Sec.i61.955.iiSALE OF PROMOTIONAL ITEMS AND MEDIA AND TRAINING MATERIALS. (a) The board may sell or contract for the sale of promotional items, including clothing, posters, and banners, designed to promote the public awareness campaign. The board may use its Internet website to advertise and sell the items.
(b)iiThe board may sell, contract for the sale of, or otherwise transfer the board's rights in media and training materials developed for the public awareness campaign.
(c)iiMoney received under this section shall be deposited to the credit of the general revenue fund and used only by the board to further the purposes of the campaign.
SECTIONi30.iiSections 142.005 and 142.006, Education Code, are amended to read as follows:
Sec.i142.005.iiPROGRESS REPORTS. An institution receiving funds under this
chapter shall report on the progress of the funded research to the coordinating board
not later than the date specified by the coordinating board [September 1 of] each year.
Sec.i142.006.iiMERIT REVIEW. The coordinating board shall appoint a
committee that consists of experts in the specified research areas to evaluate the
program's effectiveness and report its findings to the coordinating board not later than
January 31 [September 1] of each odd-numbered [the second] year [of each
biennium].
SECTIONi31.iiChapter 142, Education Code, is amended by adding Section 142.007 to read as follows:
3824 78th Legislature — Regular Session 82nd Day
Sec.i142.007.iiCONFIDENTIALITY. Information submitted as part of a pre-proposal or proposal or related to the evaluation and selection of research projects to be funded by the program is confidential unless made public by coordinating board rule.
SECTIONi32.iiSections 143.006 and 143.007, Education Code, are amended to read as follows:
Sec.i143.006.iiPROGRESS REPORTS. An institution receiving funds under this
chapter shall report on the progress of the funded research to the coordinating board
not later than the date specified by the coordinating board [September 1 of] each year.
Sec.i143.007.iiMERIT REVIEW. The coordinating board shall appoint a
committee consisting of representatives of higher education and private enterprise
advanced technology research organizations to evaluate the technology program's
effectiveness and report its findings to the coordinating board not later than
Januaryi31 [September 1] of each odd-numbered [the second] year [of each
biennium].
SECTIONi33.iiChapter 143, Education Code, is amended by adding Section 143.008 to read as follows:
Sec.i143.008.iiCONFIDENTIALITY. Information submitted as part of a pre-proposal or proposal or related to the evaluation and selection of research projects to be funded by the technology program is confidential unless made public by coordinating board rule.
SECTIONi34.iiSection 7.005, Education Code, is amended to read as follows:
Sec.i7.005.iiCOOPERATION BETWEEN STATE AGENCIES OF
EDUCATION. The State Board of Education and the Texas Higher Education
Coordinating Board, in conjunction with other appropriate agencies, shall ensure that
long-range plans and educational programs established by each board provide a
comprehensive education for the students of this state under the jurisdiction of that
board, extending from early childhood education through postgraduate study. In
assuring that programs are coordinated, the boards shall use the P-16 Council [joint
advisory committee] established under Section 61.077.
SECTIONi35.iiSection 52.34, Education Code, is amended to read as follows:
Sec.i52.34.iiPAYMENTS TO STUDENT. (a)iiNo payment may be made to any
student until the student [he] has executed a note payable to the Texas Opportunity
Plan Fund for the full amount of the authorized loan plus interest.
(b)iiFor the purposes of this chapter, a student has the capacity to contract and is
bound by any contract executed by the student [him], and the defense that the student
[he] was a minor at the time the student [he] executed the note is not available to the
student [him] in any action arising on the note.
(c)iiPayments to students executing notes may be made annually, semiannually,
quarterly, monthly, or for each semester as the board may determine, depending on the
demonstrated capacity of the student to manage the student's [his] financial affairs.
(d)iiDisbursements may be made by the board or by the participating institution pursuant to a contract between the board and the institution executed in conformity with this chapter.
(e)iiMoney [No funds] may be distributed to a participating institution only
[except] to make payments to a student under a loan authorized by this chapter.
Friday, May 30, 2003 SENATE JOURNAL 3825
(f)iiThe board shall distribute money to a participating institution through the electronic funds transfer system maintained by the Texas Guaranteed Student Loan Corporation for disbursing loan funds from commercial lenders participating in the guaranteed student loan program under Chapter 57, except that at the request of a participating institution the board may distribute the money through other means. The board shall enter into a contract with the corporation for the use of the system, and the corporation shall make the system available to the board as necessary to carry out this subsection.
SECTIONi36.iiSubchapter C, Chapter 52, Education Code, is amended by adding Section 52.41 to read as follows:
Sec.i52.41.iiRESTRICTION ON ISSUANCE OF CERTAIN FEDERALLY INSURED STUDENT LOANS. (a)iiExcept as provided by Subsection (c), the board may issue a student loan under the Federal Family Education Loan Program (20 U.S.C. Section 1071 et seq.), as amended, only to a borrower who has been or will be issued a student loan under another student loan program administered by the board.
(b)iiThe board may service any outstanding student loans issued by the board under the Federal Family Education Loan Program.
(c)iiThe board may issue student loans under the Federal Family Education Loan Program to borrowers other than borrowers described by Subsection (a) if the commissioner of higher education determines that market conditions warrant the issuance of those loans.
SECTIONi37.iiThe heading to Subchapter O, Chapter 56, Education Code, as added by Chapter 1261, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
SUBCHAPTER O. TEACH FOR TEXAS
LOAN REPAYMENT [FINANCIAL] ASSISTANCE PROGRAM
SECTIONi38.iiSubchapter O, Chapter 56, Education Code, as added by Chapter 1261, Acts of the 77th Legislature, Regular Session, 2001, is amended by amending Sections 56.351 through 56.355 and adding Sections 56.3575 and 56.359 to read as follows:
Sec.i56.351.iiDEFINITION [DEFINITIONS]. In this subchapter, "coordinating[:
[(1)ii"Coordinating] board" means the Texas Higher Education Coordinating
Board.
[(2)ii"Eligible institution of higher education" means:
[(A)iian institution of higher education; or
[(B)iia private or independent institution of higher education as defined
by Section 61.003.]
Sec.i56.352.iiPURPOSE OF PROGRAM; LOAN REPAYMENT
AUTHORIZED. (a)iiThe purpose of this subchapter is to attract to the teaching
profession persons who have expressed interest in teaching and to support the
employment [certification] of those persons as classroom teachers by providing
student loan repayment assistance for service [a grant on the condition that the
recipient serve] as a classroom teacher in the public schools of this state [for a
specified period].
3826 78th Legislature — Regular Session 82nd Day
(b)iiThe coordinating board shall provide, in accordance with this subchapter and board rules, assistance in the repayment of eligible student loans for persons who apply and qualify for the assistance.
Sec.i56.353.iiELIGIBILITY [FOR GRANT; TEACHING AGREEMENT].
(a)ii[A] Teach for Texas repayment assistance [grant] is available only to a person
who applies for the assistance [a grant] and who:
(1)iiis certified [seeking educator certification;
[(2)iiis enrolled in an eligible institution of higher education in this state:
[(A)iias a junior or senior in a baccalaureate degree program; or
[(B)iiin the person's first academic year in an educator certification
program after receiving a baccalaureate degree;
[(3)iimakes satisfactory progress toward completion of the person's educator
certification program; and
[(4)iisatisfies one of the following:
[(A)iithe person is seeking educator certification] in a teaching field
identified [certified] by the commissioner of education as experiencing a critical
shortage of teachers in this state in the year in which the person receives the assistance
[grant] and has for at least one year taught full-time at, and is currently teaching
[agrees to teach] full-time [for five years] at, the preschool, primary, or secondary
level in a public school in this state in that teaching field; or
(2)iiis a certified educator who has for at least one year taught full-time at,
and is currently teaching [(B) the person agrees to teach] full-time [for five years] at,
the preschool, primary, or secondary level in a public school in this state in a
community identified[, which is not required to be specifically designated at the time
the person receives the grant, certified] by the commissioner of education as
experiencing a critical shortage of teachers in the [any] year in which the person
receives the assistance [a grant under this subchapter or in any subsequent year in
which the person fulfills the teaching obligation].
(b)iiThe coordinating board in awarding repayment assistance [Teach for Texas
grants] shall give priority to applicants who demonstrate financial need.
(c)ii[If the money available for grants in a period for which grants are awarded
exceeds the amount needed to provide grants to all eligible applicants described by
Subsection (b), the coordinating board shall award grants from the remaining money
to additional eligible applicants. The coordinating board shall prescribe by rule the
eligibility requirements for these applicants based on the factors that the coordinating
board considers appropriate to further the purposes of this subchapter.
[(d)]iiIf the money available for loan repayment assistance [grants] in a period
for which assistance is [grants are] awarded is insufficient to provide assistance
[grants] to all eligible applicants described by Subsection (b), the coordinating board
shall establish priorities for awarding repayment assistance to address the most critical
teacher shortages described by Subsection (a) [give the highest priority to applicants
who demonstrate the greatest financial need].
(d)i[(e)]iiA person may not receive loan repayment assistance [a Teach for Texas
tuition grant] for more than five [three academic] years [or the equivalent].
Friday, May 30, 2003 SENATE JOURNAL 3827
[(f)iiA person is not eligible to receive a Teach for Texas grant if the person has
been convicted of a felony or an offense under Chapter 481, Health and Safety Code
(Texas Controlled Substances Act), or under the law of another jurisdiction involving
a controlled substance, as defined by Chapter 481, Health and Safety Code, unless the
person has met the other applicable eligibility requirements under this subchapter and
has:
[(1)iireceived a certificate of discharge by the Texas Department of Criminal
Justice or a correctional facility or completed a period of probation ordered by a court,
and at least two years have elapsed from the date of the receipt or completion; or
[(2)iibeen pardoned, had the record of the offense expunged from the
person's record, or otherwise has been released from the resulting ineligibility to
receive a grant under this subchapter.
[(g)iiFor the purpose of this section, a person makes satisfactory academic
progress toward completion of an educator certification program if the person:
[(1)iicompletes at least 75 percent of the semester credit hours attempted in
the student's most recent academic year; and
[(2)iiearns an overall grade point average of at least 2.5 on a four-point scale
or the equivalent on coursework previously attempted at institutions of higher
education.]
Sec.i56.354.iiELIGIBLE LOANS. (a)iiA person may receive Teach for Texas loan repayment assistance under this subchapter for the repayment of any student loan for education at any public or private institution of higher education through any lender. If the loan is not a state or federal guaranteed student loan, the note or other writing governing the terms of the loan must require the loan proceeds to be used for expenses incurred by a person to attend a public or private institution of higher education.
(b)iiThe coordinating board may not provide loan repayment assistance for a
student loan that is in default at the time of the person's application [AMOUNT OF
GRANT; PAYMENT OF GRANT. (a)iiThe amount of a Teach for Texas grant is
equal to four times the current amount of a TEXAS grant under Subchapter M for a
student enrolled in a general academic teaching institution.
[(b)iiThe coordinating board shall pay the amount of a Teach for Texas grant in
installments, with a substantially equal amount paid in each semester or term based on
the number of semesters in which a typical full-time student would complete the
recipient's educator certification program. The coordinating board may adjust the
amount of a grant for a semester or term, or award a supplemental grant, to ensure that
a grant recipient who completes the educator certification program receives the total
amount of the recipient's grant].
Sec.i56.355.iiPAYMENT OF ASSISTANCE. (a)iiThe coordinating board may determine the manner in which Teach for Texas loan repayment assistance is to be paid. The coordinating board may provide for the payment of a portion of the repayment assistance in one or more installments before the person completes a full year of service as a teacher and for the payment of the remainder of the repayment assistance for that year after the completion of the full year of service.
3828 78th Legislature — Regular Session 82nd Day
(b)iiLoan repayment assistance received under this subchapter may be applied to
the principal amount of the loan and to interest that accrues [ELIGIBILITY FOR
TEXAS GRANT NOT AFFECTED. A person may receive both a TEXAS grant
under Subchapter M and a Teach for Texas grant under this subchapter for the same
semester or term].
Sec.i56.3575.iiADMINISTRATION; RULES. (a)iiThe coordinating board shall adopt rules necessary for the administration of this subchapter.
(b)iiThe coordinating board shall distribute a copy of the rules adopted under this section and pertinent information relating to this subchapter to each public or private institution of higher education in this state that offers an educator certification program, including an alternative educator certification program or another equivalent program.
Sec.i56.359.iiGRANTS AND SERVICE AGREEMENTS ENTERED INTO UNDER FORMER LAW; SAVING PROVISION. (a)iiThis section applies only to a person who was awarded a Teach for Texas grant and entered into a written agreement to perform service as a public school teacher in this state in order to receive the grant under this subchapter before September 1, 2003.
(b)iiA person to whom this section applies may receive any unpaid installments of the grant as provided by the agreement and in accordance with this subchapter as it existed when the grant was awarded. The agreement continues in effect and this subchapter, as it existed when the person entered into the agreement, is continued in effect for purposes of that agreement until the person satisfies all the conditions of the agreement or repays all amounts due under the agreement if the person does not satisfy the conditions of the agreement.
SECTIONi39.iiSections 61.0592, 61.0593, 61.070, and 61.071, Education Code, are repealed.
SECTIONi40.iiSubsection (e), Section 61.0771, Education Code, is repealed.
SECTIONi41.iiSections 61.094 and 61.096, Education Code, are repealed.
SECTIONi42.iiSubchapter E, Chapter 61, Education Code, is repealed.
SECTIONi43.iiSubchapter Q, Chapter 61, Education Code, is repealed.
SECTIONi44. (a) Section 56.356, Education Code, as added by Chapter 1261, Acts of the 77th Legislature, Regular Session, 2001, is repealed.
(b)iiSection 61.875, Education Code, as added by Chapter 833, Acts of the 76th Legislature, Regular Session, 1999, is repealed.
(c)iiSection 61.953, Education Code, as added by Chapter 1403, Acts of the 77th Legislature, Regular Session, 2001, is repealed.
SECTIONi45. (a) Of the six positions on the Texas Higher Education Coordinating Board that have terms scheduled to expire on August 31, 2003, three of the positions are abolished on September 1, 2003. On or before September 1, 2003, the governor shall designate which three of the six positions shall be abolished. The governor shall appoint persons to fill the other three positions for terms expiring August 31, 2009.
(b)iiOf the six positions on the Texas Higher Education Coordinating Board that have terms scheduled to expire on August 31, 2005, three of the positions are abolished on September 1, 2003. On or before September 1, 2003, the members whose terms are scheduled to expire on August 31, 2005, shall determine by
Friday, May 30, 2003 SENATE JOURNAL 3829
(c)iiOf the six positions on the Texas Higher Education Coordinating Board that have terms scheduled to expire on August 31, 2007, three of the positions are abolished on September 1, 2003. On or before September 1, 2003, the members whose terms are scheduled to expire on August 31, 2007, shall determine by unanimous agreement or by lot which three of the six positions shall be abolished and shall inform the presiding officer of the Texas Higher Education Coordinating Board of that determination.
SECTIONi46.iiThe changes in law made by this Act in the prohibitions or qualifications applying to members of the Texas Higher Education Coordinating Board do not affect the entitlement of a member serving on the board immediately before the effective date of this Act to continue to serve and function as a member of the board for the remainder of the member's term. Those changes in law apply only to a member appointed on or after the effective date of this Act.
SECTIONi47.iiOn the effective date of this Act:
(1)iithe P-16 Council replaces the joint advisory committee as the advisory board for the Texas Higher Education Coordinating Board and the State Board of Education;
(2)iiall functions and activities performed by the joint advisory committee are transferred to the P-16 Council to the extent consistent with the functions and duties of the P-16 Council provided by law; and
(3)iia reference in law to the joint advisory committee that relates to providing advisory functions to the Texas Higher Education Coordinating Board and the State Board of Education means the P-16 Council.
SECTIONi48. (a) Each general academic teaching institution shall provide the performance data as required by Section 61.0902, Education Code, as added by this Act, beginning with the data for the 2003-2004 academic year.
(b)iiNot later than March 1, 2005, the Texas Higher Education Coordinating Board shall publish and post on the board's Internet site the performance data provided by the general academic teaching institutions in this state as required by Section 61.0902, Education Code, as added by this Act.
SECTIONi49.iiNot later than June 1, 2004, the Texas Higher Education Coordinating Board shall:
(1)iiapprove the common course numbering system required by Section 61.832, Education Code, as added by this Act; and
(2)iiestablish a timetable for each public institution of higher education to phase in the inclusion of the applicable course numbers from the common course numbering system in its individual course catalog system.
SECTIONi50. (a) The Texas Higher Education Coordinating Board shall enter into a contract with the Texas Guaranteed Student Loan Corporation to use the corporation's electronic funds transfer system, as required by Section 52.34, Education Code, as amended by this Act, not later than January 1, 2004.
3830 78th Legislature — Regular Session 82nd Day
(b)iiSubsection (a), Section 52.41, Education Code, as added by this Act, applies only to a student loan issued under the Federal Family Education Loan Program (20 U.S.C. Section 1071 et seq.), as amended, on or after the effective date of this Act.
SECTIONi51.iiThis Act takes effect September 1, 2003.
Floor Amendment No. 1
Amend CSSB 286 as follows:
1. On page 42, lines 3 through 25 of the bill, strike Section 45, of the bill and substitute the following:
SECTION 45. To achieve an orderly transition from 18 to 9 positions on the Texas Higher Education Coordinating Board, the Governor on August 31, 2003, or September 1, 2003, shall appoint only three persons to the coordinating board for terms expiring on August 31, 2009. On, or as soon as possible after, August 31, 2005, the Governor shall appoint only four members to the coordinating board for terms expiring on August 31, 2011. On, or as soon as possible after, August 31, 2007, the Governor shall appoint only two members to the coordinating board for terms expiring on August 31, 2013. As terms on the coordinating board expire on and after August 31, 2009, the Governor shall appoint three members to the coordinating board in accordance with Section 61.022, Education Code, as amended by this Act.
Floor Amendment No. 2
Amend CSSB 286 by adding the following appropriately numbered SECTION and renumbering the other SECTIONS of the bill accordingly:
SECTIONi____.iiSection 61.313, Education Code, is amended by amending Subsection (e) and adding Subsections (f) and (g) to read as follows:
(e)iiThis section does not apply to a person who on September 1, 1997, used the term "college" or "university" in the official name or title of a private postsecondary educational institution that was established before September 1, 1975. A person covered by this subsection is not required to remove the term "college" or "university" from the name or title of the institution established before September 1, 1975.
(f)iiA person covered by Subsection (e) [this subsection] may use the term
"college" in the official name or title of another private postsecondary educational
institution in this state if:
(1)iithe person's business name on September 1, 1995, included the term "college"; and
(2)iithe other institution offers the same or similar educational programs and is located in the same county as the institution established before September 1, 1975.
(g)iiA person covered by Subsection (e) may use the term "college" in the official name or title of another private postsecondary educational institution in this state if:
(1)iithe person operated at least four private postsecondary educational institutions in this state on September 1, 1985, for which the person was permitted to use the term "college" in the official name or title; and
(2)iithe other institution offers the same or similar educational programs as the institutions described by Subdivision (1) and has enrolled students in educational programs continuously since before September 1, 1995.
Friday, May 30, 2003 SENATE JOURNAL 3831
Floor Amendment No. 3
Amend CSSB 286 by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill accordingly:
SECTIONi____.iiThe heading to Subchapter N, Chapter 51, Education Code, is amended to read as follows:
SUBCHAPTER N. PARTNERSHIPS BETWEEN COMMUNITY/JUNIOR
COLLEGES AND OTHER INSTITUTIONS OF HIGHER EDUCATION
[UPPER-LEVEL UNIVERSITIES OR CENTERS]
SECTIONi____.iiSection 51.661, Education Code, is amended to read as follows:
Sec.i51.661.iiPURPOSE. The purpose of this subchapter is to encourage
partnerships between public community/junior colleges and other institutions of
higher education that [upper-level universities or centers which] are located in the
same state uniform service region as adopted by the Texas Higher Education
Coordinating Board in order to improve the continuity, quality, and efficiency of
educational programs and services.
SECTIONi____.iiSubchapter N, Chapter 51, Education Code, is amended by adding Section 51.6615 to read as follows:
Sec.i51.6615.iiDEFINITION. In this section, "institution of higher education" has the meaning assigned by Section 61.003.
SECTIONi____.iiSection 51.662, Education Code, is amended to read as follows:
Sec.i51.662.iiPARTNERSHIP AGREEMENTS. With the approval of the Texas
Higher Education Coordinating Board, the governing boards of a public
community/junior college and another institution of higher education that [an
upper-level university or center which] are located in the same state uniform service
region as adopted by the coordinating board may enter into a partnership agreement
designed to coordinate the management and operations of the institutions. The
agreements shall in no way abrogate the powers and duties of the boards with regard
to the governance of their respective institutions.
SECTIONi____.iiSection 51.666, Education Code, is amended to read as follows:
Sec.i51.666.iiFACILITIES. A participating institution of higher education
[upper-level university or center] may lease facilities from or to the community/junior
college for administrative and instructional purposes. Community/junior college
facilities may not be transferred to the other participating institution of higher
education [university or center] and may not be included in the space inventory of the
other participating institution of higher education [university or center] for formula
funding purposes.
SECTIONi____.iiSection 51.667, Education Code, is amended to read as follows:
Sec.i51.667.iiSTATE FUNDING. The community/junior college shall receive
state appropriations on the same formula basis as other community/junior colleges,
and the other participating institution of higher education [university or center] shall
receive state appropriations on the same formula basis as other similar institutions of
higher education [upper-level senior colleges and universities].
3832 78th Legislature — Regular Session 82nd Day
SECTIONi____.iiSection 51.668, Education Code, is amended to read as follows:
Sec.i51.668.iiCONTINUING RESPONSIBILITIES. A participating
community/junior college must continue to provide programs and services
enumerated in Section 130.003(e) [Subsection (e) of Section 130.003 of this code].
The role [rule] and scope of the other participating institution of higher education
[university or center] are subject to approval by the coordinating board.
Floor Amendment No. 4
Amend CSSB 286 (House committee report) by adding the following appropriately numbered SECTION to the bill and by renumbering existing SECTIONS of the bill as follows:
SECTION ____. (a) The purpose of this section is to provide for assessment of the readiness of entering college students to:
(1) enroll in freshman-level academic coursework; and
(2) by providing advising and educational support necessary for success in college, assist students who are not yet ready to enroll in that coursework.
(b) Subchapter F, Chapter 51, Education Code, is amended by adding Section 51.3062 to read as follows:
Sec. 51.3062. SUCCESS INITIATIVE. (a) The definitions provided by Section 61.003 apply to this section.
(b) An institution of higher education shall assess the academic skills of each entering undergraduate student to determine the student's readiness to enroll in freshman-level academic coursework. An institution may not use the assessment or the results of the assessment as a condition of admission to the institution.
(c) The board shall designate an instrument for use by institutions of higher education in assessing students under this section.
(d) If practical and feasible, not later than September 1, 2005, the board shall designate the exit-level assessment instrument required under Section 39.023 as the primary assessment instrument under this section. This subsection expires Septemberi1, 2006.
(e) As the board considers necessary, the board may designate additional assessment instruments for use by institutions of higher education under this section.
(f) An assessment instrument designated by the board for use under this section must be diagnostic in nature and designed to assess a student's readiness to perform freshman-level academic coursework. The board shall prescribe standards for the assessment instrument or instruments that reflect that student readiness. An institution of higher education may adopt more stringent assessment standards with respect to student readiness.
(g) Each institution of higher education shall establish a program to advise students regarding coursework and other means by which students can develop the academic skills required to successfully complete college-level work.
(h) If a student fails to meet the assessment standards described by Subsection (f), the institution of higher education shall work with the student to develop a plan to assist the student in becoming ready to perform freshman-level academic coursework. The plan must be designed on an individual basis to provide the best opportunity for each student to attain that readiness.
Friday, May 30, 2003 SENATE JOURNAL 3833
(i) The institution of higher education may refer a student to developmental coursework as considered necessary by the institution to address a student's deficiencies in the student's readiness to perform freshman-level academic coursework, except that the institution may not require enrollment in developmental coursework with respect to a student previously determined by any institution of higher education to have met college-readiness standards.
(j) A student may retake an assessment instrument at any time to determine readiness to perform freshman-level academic coursework.
(k) An institution of higher education shall determine when a student is ready to perform freshman-level academic coursework. The determination may include requiring a student to retake an assessment instrument or other means of evaluating student readiness. The institution must make its determination on an individual basis according to the needs of the student.
(1) The legislature shall appropriate money for approved non-degree-credit developmental courses, except that legislative appropriations may not be used for developmental coursework taken by a student in excess of:
(1) 18 semester credit hours, for a general academic teaching institution; and
(2) 27 semester credit hours, for a public junior college, public technical institute, or public state college.
(m) The board may develop formulas to supplement the funding of developmental academic programs by institutions of higher education, including formulas for supplementing the funding of non-course-based programs. The board may develop a performance funding formula by which institutions may receive additional funding for each student who completes the Success Initiative established under this section and then successfully completes college coursework. The legislature may appropriate the money required to provide the additional funding under those formulas.
(n) Each institution of higher education shall report annually to the board on the success of its students and the effectiveness of its Success Initiative.
(o) The board shall evaluate the effectiveness of the Success Initiative on a statewide basis and with respect to each institution of higher education.
(p) A student who has achieved a score set by the board on the Scholastic Assessment Test (SAT) or the American College Test (ACT) is exempt from the requirements of this section. An exemption under this subsection is effective for the five-year period following the date a student takes the test and achieves the standard set by the board.
(q) A student who has achieved a score set by the board on an exit-level assessment instrument required under Section 39.023 is exempt from the requirements of this section. The exemption is effective for the three-year period following the date a student takes the assessment instrument and achieves the standard set by the board. This subsection does not apply during any period for which the board designates the exit-level assessment instrument required under Section 39.023 as the primary assessment instrument under this section, except that the three-year period described by this subsection remains in effect for students who qualify for an exemption under this section before that period.
(r) This section does not apply to:
3834 78th Legislature — Regular Session 82nd Day
(1) a student who has graduated with an associate or baccalaureate degree from an institution of higher education;
(2) a student who transfers to an institution of higher education from a private or independent institution of higher education or an accredited out-of-state institution of higher education and who has satisfactorily completed college-level coursework;
(3) a student who is enrolled in a certificate program of one year or less at a public junior college, a public technical institute, or a public state college; or
(4) a student who is serving on active duty as a member of the Armed Forces of the United States.
(s) An institution of higher education may exempt a non-degree-seeking or non-certificate-seeking student from the requirements of this section.
(c) Sections 51.306 and 51.3061, Education Code, are repealed.
(d) The Texas Higher Education Coordinating Board shall adopt rules for the administration of Section 51.3062, Education Code, as added by this Act, as soon as practicable after this Act takes effect. For that purpose, the board may adopt the initial rules in the manner provided by law for emergency rules.
Floor Amendment No. 5
Amend Floor Amendment No. 4 by Delisi to CSSB 286 as follows:
(1) In SECTION 1 of the amendment add the following new Subsection and renumber the subsequent Subsections appropriately:
____ The Board, by rule, shall provide for each institution to inform students about the Success Initiative, including the institution's responsibilities and the students' options and responsibilities.
Floor Amendment No. 6
Amend CSSB 286 (House committee report) by adding the following appropriately numbered SECTION to the bill and by renumbering existing SECTIONS of the bill accordingly:
SECTION ____. Subchapter C, Chapter 61, Education Code, is amended by adding Section 61.0816 to read as follows:
Sec. 61.0816. INFORMATION REGARDING HIGHER EDUCATION AUTHORITIES. (a) The board shall collect and make available to the public on request information regarding higher education authorities operating under Chapter 53 and nonprofit corporations carrying out the functions of higher education authorities under Chapter 53. For each authority or corporation, the information must include:
(1) total amount and type of outstanding bonds issued by the authority or corporation;
(2) a description of the programs and activities administered by the authority or corporation; and
(3) with respect to any real property owned by the authority or corporation:
(A) the location and description of the property;
(B) the current or proposed use of the property, including whether the property is under construction or renovation;
(C) the method by which the authority or corporation financed the acquisition, construction, or renovation of the property;
Friday, May 30, 2003 SENATE JOURNAL 3835
(D) the school, public or private institution of higher education, or other educational institution for which the property is being used or proposed to be used;
(E) whether the property is exempt from ad valorem taxes; and
(F) the appraised value of the property.
(b) A higher education authority or nonprofit corporation described by this section shall provide the board the relevant information the board requests at the time and in the manner the board prescribes.
Floor Amendment No. 1 on Third Reading
Amend CSSB 286 on third reading by inserting the following appropriately numbered SECTION and renumbering the other SECTIONS of the bill accordingly:
SECTION ____.iiSubchapter A, Chapter 130, Education Code, is amended by adding Section 130.0012 to read as follows:
Sec. 130.0012. PILOT PROJECT: BACCALAUREATE DEGREE PROGRAMS. (a) The Texas Higher Education Coordinating Board shall establish a pilot project to examine the feasibility and effectiveness of authorizing public junior colleges to offer baccalaureate degree programs in the fields of applied science and applied technology. Participation in the pilot project does not otherwise alter the role and mission of a public junior college.
(b) The coordinating board shall operate the pilot project at the following public junior colleges:
(1) Brazosport College;
(2) El Centro College of the Dallas County Community College District;
(3) Midland College;
(4) North Harris Montgomery Community College District; and
(5) South Texas Community College.
(c) A public junior college participating in the pilot project must meet all applicable accreditation requirements of the Commission on Colleges of the Southern Association of Colleges and Schools.
(d) A public junior college participating in the pilot project may not offer more than five baccalaureate degree programs under the project at any time. The degree programs are subject to the continuing approval of the coordinating board. In determining what baccalaureate degree programs are to be offered, the junior college and the coordinating board shall consider:
(1) the need for the degree programs in the region served by the junior college;
(2) how those degree programs would complement the other programs and course offerings of the junior college;
(3) whether those degree programs would unnecessarily duplicate the degree programs offered by other institutions of higher education; and
(4) the ability of the junior college to support the program and the adequacy of the junior college's facilities, faculty, administration, libraries, and other resources.
(e) Each public junior college that offers a baccalaureate degree program under the pilot project must enter into an articulation agreement with one or more general academic teaching institutions to ensure that students enrolled in the degree program have an opportunity to complete the degree if the public junior college ceases to offer
3836 78th Legislature — Regular Session 82nd Day
(f) In its recommendations to the legislature relating to state funding for public junior colleges, the coordinating board shall recommend that a public junior college receive substantially the same state support for junior-level and senior-level courses offered under the pilot project as that provided to a general academic teaching institution for substantially similar courses. In determining the contact hours attributable to students enrolled in a junior-level or senior-level course offered under the pilot project used to determine a public junior college's proportionate share of state appropriations under Section 130.003, the coordinating board shall weigh those contact hours as necessary to provide the junior college the appropriate level of state support to the extent state funds for those courses are included in the appropriations. This subsection does not prohibit the legislature from directly appropriating state funds to support junior-level and senior-level courses offered under the pilot project.
(g) Each public junior college participating in the pilot project shall prepare a biennial report on the operation and effectiveness of the junior college's baccalaureate degree programs offered under the project and shall deliver a copy of the report to the coordinating board in the form and at the time determined by the coordinating board.
(h) Not later than January 1, 2009, the coordinating board shall prepare a progress report on the pilot project. Not later than January 1, 2011, the coordinating board shall prepare a report on the effectiveness of the pilot project, including any recommendations for legislative action regarding the offering of baccalaureate degree programs by public junior colleges. The coordinating board shall deliver a copy of each report to the governor, the lieutenant governor, the speaker of the house of representatives, and the chair of the standing committee of each house of the legislature with primary jurisdiction over higher education.
(i) Unless the authority to continue offering the baccalaureate degree programs is continued by the legislature, a public junior college may not:
(1) enroll a new student in a baccalaureate degree program under the pilot project after the 2011 fall semester;
(2) offer junior-level or senior-level courses for those degree programs after the 2015 fall semester, unless the coordinating board authorizes the college to offer those courses; or
(3) award a baccalaureate degree under the pilot project after the 2015 fall semester, unless the coordinating board approves the awarding of the degree.
(j) The coordinating board shall prescribe procedures to ensure that each public junior college that offers a degree program under the pilot project informs each student who enrolls in the degree program of:
(1) the nature of the pilot project, including the limited duration of the project; and
(2) the articulation agreement entered into under Subsection (e) for the student's degree program.
(k) This section expires January 1, 2020.
Friday, May 30, 2003 SENATE JOURNAL 3837
Floor Amendment No. 2 on Third Reading
Amend CSSB 286 on third reading by adding the following appropriately numbered SECTION and renumbering the other SECTIONS of the bill accordingly:
SECTION 1. Chapter 56, Education Code, is amended by adding Subchapter F to read as follows:
SUBCHAPTER F. DOCTORAL INCENTIVE LOAN
REPAYMENT PROGRAM
Sec. 56.091. ESTABLISHMENT; ADMINISTRATION. (a) The Texas Higher Education Coordinating Board shall establish and administer the doctoral incentive loan repayment program as provided by this subchapter and shall adopt rules as necessary to administer the program.
(b) The purpose of the doctoral incentive loan repayment program is to provide education loan repayment assistance to individuals from groups that are underrepresented among the faculty and administration of public and independent institutions of higher education in this state to increase the number of individuals from those underrepresented groups among the faculty and administration of public and independent institutions of higher education in this state.
(c) For purposes of this subchapter, an individual is from a group that is underrepresented among the faculty and administration of public and independent institutions of higher education in this state if:
(1) the individual was from a low socioeconomic background while pursuing the individual's undergraduate education; or
(2) when the individual graduated from high school the individual resided in an area from which a disproportionately low number of high school graduates enrolled in postsecondary educational institutions.
Sec. 56.092. ELIGIBILITY. To be eligible for loan repayment assistance under the doctoral incentive loan repayment program, an individual must:
(1) be employed as a full-time faculty or administration member in a public or independent institution of higher education in this state for at least one year;
(2) be a Texas resident;
(3) be from a group that is underrepresented among the faculty and administration of public and independent institutions of higher education in this state;
(4) have qualified for student financial aid based on financial need while enrolled in a graduate-level degree program; and
(5) comply with any other requirements adopted by the coordinating board for the effective administration of the program.
Sec. 56.093. ELIGIBLE LOANS. The coordinating board may provide repayment assistance under the doctoral incentive loan repayment program for the repayment of any education loan received by an eligible individual through any lender.
Sec. 56.094. LOAN REPAYMENT ASSISTANCE. (a) The coordinating board may provide assistance in the repayment of an eligible loan to an eligible individual in the amounts and under the terms the coordinating board considers appropriate to further the purposes of the doctoral incentive loan repayment program and the best interests of this state.
(b) An individual may receive loan repayment assistance under the doctoral incentive loan repayment program in a total amount not to exceed $100,000.
3838 78th Legislature — Regular Session 82nd Day
Sec. 56.095. FUNDING; LIMITATION ON FUNDING. (a) The doctoral incentive loan repayment program may be funded only from a source provided by this section. The total amount of loan repayment assistance paid under the program may not exceed the amount of money available for the program under this section.
(b) Each institution of higher education shall set aside a portion of the tuition collected from each student enrolled in a doctoral degree program, other than a law or health professional degree program, equal to $2 for each semester credit hour for which the student is enrolled. The amount set aside shall be transferred to the comptroller to be maintained in the state treasury for the sole purpose of repayment of student loans of individuals employed as faculty and administrators at institutions of higher education in this state as provided by this subchapter. The money may be used only to provide loan repayment under this subchapter and to cover the costs of administering this subchapter.
(c) The coordinating board may solicit and accept gifts and grants from any public or private source for the purposes of the doctoral incentive loan repayment program.
Sec. 56.096. INITIAL IMPLEMENTATION. (a) The board shall provide loan repayments under this subchapter beginning with the 2004-2005 academic year.
(b) The board shall adopt the initial rules for awarding loan repayment under this subchapter as soon as practicable after this subchapter becomes law. The board may adopt those initial rules in the manner provided by law for emergency rules.
(c) This section expires January 1, 2006.
Floor Amendment No. 3 on Third Reading
Substitute Floor Amendment No. 2 on Third Reading to CSSB 286 on third reading by adding the following appropriately numbered SECTION and renumbering the other SECTIONS of the bill accordingly:
SECTION _____. Chapter 56, Education Code, is amended by adding Subchapter F to read as follows:
SUBCHAPTER F. DOCTORAL INCENTIVE LOAN
REPAYMENT PROGRAM
Sec. 56.091. ESTABLISHMENT; ADMINISTRATION. (a) The Texas Higher Education Coordinating Board shall establish and administer the doctoral incentive loan repayment program as provided by this subchapter and shall adopt rules as necessary to administer the program.
(b) The purpose of the doctoral incentive loan repayment program is to provide education loan repayment assistance to individuals from groups that are underrepresented among the faculty and administration of public and independent institutions of higher education in this state to increase the number of individuals from those underrepresented groups among the faculty and administration of public and independent institutions of higher education in this state.
(c) For purposes of this subchapter, an individual is from a group that is underrepresented among the faculty and administration of public and independent institutions of higher education in this state if:
(1) the individual was from a low socioeconomic background while pursuing the individual's undergraduate education; or
Friday, May 30, 2003 SENATE JOURNAL 3839
(2) when the individual graduated from high school the individual resided in an area from which a disproportionately low number of high school graduates enrolled in postsecondary educational institutions.
Sec. 56.092. ELIGIBILITY. To be eligible for loan repayment assistance under the doctoral incentive loan repayment program, an individual must:
(1) be employed as a full-time faculty or administration member in a public or independent institution of higher education in this state for at least one year;
(2) be a Texas resident;
(3) be from a group that is underrepresented among the faculty and administration of public and independent institutions of higher education in this state;
(4) have qualified for student financial aid based on financial need while enrolled in a graduate-level degree program; and
(5) comply with any other requirements adopted by the coordinating board for the effective administration of the program.
Sec. 56.093. ELIGIBLE LOANS. The coordinating board may provide repayment assistance under the doctoral incentive loan repayment program for the repayment of any education loan received by an eligible individual through any lender.
Sec. 56.094. LOAN REPAYMENT ASSISTANCE. (a) The coordinating board may provide assistance in the repayment of an eligible loan to an eligible individual in the amounts and under the terms the coordinating board considers appropriate to further the purposes of the doctoral incentive loan repayment program and the best interests of this state.
(b) An individual may receive loan repayment assistance under the doctoral incentive loan repayment program in a total amount not to exceed $100,000.
Sec. 56.095. FUNDING; LIMITATION ON FUNDING. (a) The doctoral incentive loan repayment program may be funded only from a source provided by this section. The total amount of loan repayment assistance paid under the program may not exceed the amount of money available for the program under this section.
(b) Each institution of higher education shall set aside a portion of the tuition collected from each student enrolled in a doctoral degree program, other than a law or health professional degree program, equal to $2 for each semester credit hour for which the student is enrolled. The amount set aside shall be transferred to the comptroller to be maintained in the state treasury for the sole purpose of repayment of student loans of individuals employed as faculty and administrators at institutions of higher education in this state as provided by this subchapter. The money may be used only to provide loan repayment under this subchapter and to cover the costs of administering this subchapter.
(c) The coordinating board may solicit and accept gifts and grants from any public or private source for the purposes of the doctoral incentive loan repayment program.
Sec. 56.096. INITIAL IMPLEMENTATION. (a) The board shall provide loan repayments under this subchapter beginning with the 2004-2005 academic year.
(b) The board shall adopt the initial rules for awarding loan repayment under this subchapter as soon as practicable after this subchapter becomes law. The board may adopt those initial rules in the manner provided by law for emergency rules.
3840 78th Legislature — Regular Session 82nd Day
(c) This section expires January 1, 2006.
Floor Amendment No. 5 on Third Reading
Amend CSSB 286 on third reading by adding the following new appropriately numbered SECTION and renumbering the subsequent SECTIONS accordingly:
SECTION _____. Subchapter A, Chapter 130, Education Code, is amended by adding Section 130.0102 to read as follows:
Sec. 130.0102. MEXICAN-AMERICAN STUDIES PROGRAM OR COURSE WORK. The governing board of a public junior college district located in one or more counties with a substantial and growing Mexican-American population shall evaluate the demand for and feasibility of establishing a Mexican-American studies program or other course work in Mexican-American studies at one or more junior colleges in the district. With approval of the Texas Higher Education Coordinating Board, the governing board may establish a Mexican-American studies program or other course work in Mexican-American studies at any of those colleges if the governing board determines that such a program or course work is desirable and feasible.
The amendments were read.
Senator Shapleigh moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 286 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Shapleigh, Chair; Averitt, Bivins, Ratliff, and Ellis.
SENATE BILL 396 WITH HOUSE AMENDMENT
Senator Shapleigh called SBi396 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.
Amendment
Amend SB 396 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to a technology immersion pilot project in public schools.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiChapter 32, Education Code, is amended by adding Subchapter D to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3841
SUBCHAPTER D. TECHNOLOGY IMMERSION PILOT PROJECT
Sec.i32.151.iiESTABLISHMENT OF PILOT PROJECT. The agency may by rule establish the technology immersion pilot project to provide a wireless mobile computing device to each student in a participating school and implement the use of software, on-line courses, and other appropriate learning technologies that have been shown to improve academic achievement and the progress measures listed in Section 32.155(e).
Sec.i32.152.iiPILOT PROJECT ADMINISTRATION. If the agency establishes the pilot project under Section 32.151, the agency shall establish a procedure and develop criteria for the administration of the pilot project. In administering the pilot project, the agency shall:
(1)iiselect participating school districts or schools;
(2)iidefine the conditions for the distribution and use of computer equipment and other technologies;
(3)iipurchase and distribute computer equipment and other technologies;
(4)iienter into contracts as necessary to implement the pilot project;
(5)iimonitor local pilot project implementation; and
(6)iiconduct a final evaluation of the pilot project.
Sec.i32.153.iiPILOT PROJECT FUNDING. (a) To implement the pilot project, the agency may use any gift, grant, or donation given for the pilot project. The agency may solicit and accept a gift, grant, or donation of any kind from any source, including from a foundation, private entity, governmental entity, and institution of higher education, for the implementation of the pilot project. The agency may not use money from the general revenue fund for purposes of the pilot project.
(b)iiFunds for the pilot project may not be used for the construction of a building or other facility.
(c)iiThe agency shall use pilot project funds for:
(1)iithe purchase of wireless mobile computing devices so that each student in a participating classroom has a wireless mobile computing device for use at school and at home;
(2)iithe purchase of other equipment, including additional computer hardware and software;
(3)iithe hiring of technical support staff for school districts or schools participating in the pilot project; and
(4)iithe purchase of technology-based learning materials and resources.
(d)iiThe agency may not allocate more than $1 million for a school participating in the pilot project.
(e)iiThe pilot project may be implemented only if sufficient funds are available under this section for that purpose.
Sec.i32.154.iiDISTRICT OR SCHOOL SELECTION. (a) A school district may apply to the agency for the establishment of a technology immersion pilot project for the entire district or for a particular school or group of schools in the district.
(b)iiThe agency shall select the participating districts and schools for the pilot project based on each district's or school's need for the pilot project. In selecting participants, the agency shall consider the following criteria:
3842 78th Legislature — Regular Session 82nd Day
(1)iiwhether the district or school has limited access to educational resources that could be improved through the use of wireless mobile computing devices and other technologies;
(2)iiwhether the district or school has the following problems and whether those problems can be mitigated through the use of wireless mobile computing devices and other technologies:
(A)iidocumented teacher shortages in critical areas;
(B)iilimited access to advanced placement courses;
(C)iilow rates of satisfactory performance on assessment instruments under Subchapter B, Chapter 39; and
(D)iihigh dropout rates;
(3)iithe district's or school's readiness to incorporate technology into its classrooms;
(4)iithe possibility of obtaining a trained technology support staff and high-speed Internet services for the district or school; and
(5)iithe methods the district or school will use to measure the progress of the pilot project in the district or school in accordance with Section 32.155(e).
(c)iiThe agency shall if possible select at least five schools to participate in the pilot project. At least one pilot project should include students in grades 6-12. The agency may select at least one entire school district and at least one entire school in a second district to participate in the pilot project.
Sec.i32.155.iiCOMMUNITY EDUCATIONAL PIPELINE PROGRESS TEAM. (a) Each participating school district or school shall establish a community educational pipeline progress team to assist in developing and implementing the technology immersion pilot project.
(b)iiThe board of trustees of a participating school district, or of a district in which a participating school is located, shall appoint individuals to the team. The team may be composed of:
(1)iieducators;
(2)iidistrict-level administrators;
(3)iicommunity leaders;
(4)iiparents of students who attend a participating school; and
(5)iiany other individual the board finds appropriate.
(c)iiThe team shall develop an academic improvement plan that details how the pilot project should be implemented in the participating district or school. In developing the academic improvement plan, the team shall consider:
(1)iithe educational problems in the district or school that could be mitigated through the implementation of the pilot project; and
(2)iithe technological and nontechnological resources that are necessary to ensure the successful implementation of the pilot project.
(d)iiThe team shall recommend to the board how the pilot project funds should be used to implement the academic improvement plan developed under Subsection (c). The team may recommend annually any necessary changes in the academic improvement plan to the board. The agency must approve the academic improvement plan, or any changes in the academic improvement plan, before disbursing pilot project funds to the board.
Friday, May 30, 2003 SENATE JOURNAL 3843
(e)iiThe board of trustees of each district participating in the pilot project shall send an annual progress report to the agency not later than August 1 of each year that the district is participating in the pilot project. The report must state in detail the type of plan being used in the district or school and the effect of the pilot project on the district or school, including:
(1)iithe academic progress of students who are participating in a pilot project, as measured by performance on assessment instruments;
(2)iiif applicable, a comparison of student progress in a school or classroom that is participating in the pilot project as compared with student progress in the schools or classrooms in the district that are not participating in the pilot project;
(3)iiany elements of the pilot project that contribute to improved student performance on assessment instruments administered under Section 39.023 or any other assessment instrument required by the agency;
(4)iiany cost savings and improved efficiency relating to school personnel and the maintenance of facilities;
(5)iiany effect on student dropout and attendance rates;
(6)iiany effect on student enrollment in higher education;
(7)iiany effect on teacher performance and retention;
(8)iiany improvement in communications among students, teachers, parents, and administrators;
(9)iiany improvement in parent involvement in the education of the parent's child;
(10)iiany effect on community involvement and support for the district or school; and
(11)iiany increased student proficiency in technologies that will help prepare the student for becoming a member of the workforce.
Sec.i32.156.iiCOMPUTER RETENTION. Each student participating in the pilot project may retain the wireless mobile computing device provided under the pilot project as long as the student is enrolled in a school in a participating school district. The student may retain the wireless mobile computing device after the expiration of the pilot project.
Sec.i32.157.iiPILOT PROJECT EVALUATION; EXPIRATION. (a) After the expiration of the three-year pilot project, the agency may review the pilot project based on the annual reports the agency receives from the board of trustees of participating school districts. The agency may include the review of the pilot project in the comprehensive annual report required under Section 39.182 that covers the 2006-2007 school year.
(b)iiThis subchapter expires August 31, 2007.
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 Shapleigh moved to concur in the House amendment to SBi396.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
3844 78th Legislature — Regular Session 82nd Day
CONFERENCE COMMITTEE ON HOUSE JOINT RESOLUTION 68
Senator Fraser called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HJRi68 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HJRi68 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Fraser, Chair; Bivins, Duncan, Ellis, and Estes.
MESSAGE FROM THE HOUSE
HOUSE CHAMBER
Austin, Texas
May 30, 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 REFUSED TO CONCUR IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:
HB 518
House Conferees: Menendez - Chair/Dutton/Goodman/Morrison/Reyna/
HB 645
House Conferees: Puente - Chair/Geren/Menendez/Mowery/Wolens/
HB 727
House Conferees: Delisi - Chair/Capelo/Gutierrez/Harper-Brown/Miller/
HB 1204
House Conferees: Baxter - Chair/Elkins/Haggerty/Howard/Wohlgemuth/
HB 1314
House Conferees: Pitts - Chair/Branch/Dawson/Grusendorf/West, George "Buddy"/
HB 1538
House Conferees: Chisum - Chair/Berman/Christian/Hupp/Noriega/
HB 2971
House Conferees: Harper-Brown - Chair/Garza/Hamric/Krusee/Laubenberg/
Friday, May 30, 2003 SENATE JOURNAL 3845
HB 3042
House Conferees: Cook, Robby - Chair/Casteel/Chisum/Menendez/Solomons/
HB 3441
House Conferees: Pickett - Chair/Davis, John/Hupp/Isett/McClendon/
HB 3442
House Conferees: Pickett - Chair/Davis, John/Hupp/Isett/McClendon/
HB 3578
House Conferees: Wong - Chair/Hunter/Menendez/Talton/Van Arsdale/
HB 3587
House Conferees: Callegari - Chair/Bonnen/Chisum/McCall/Wilson/
HB 3588
House Conferees: Krusee - Chair/Delisi/Garza/Hill/Phillips/
THE HOUSE HAS GRANTED THE REQUEST OF THE SENATE FOR THE APPOINTMENT OF A CONFERENCE COMMITTEE ON THE FOLLOWING MEASURES:
SB 117
House Conferees: Hope - Chair/Berman/Ellis/Hopson/Hupp/
SB 361
House Conferees: Hill - Chair/Garza/Hamric/Harper-Brown/Krusee/
Respectfully,
/s/Robert Haney, Chief Clerk
House of Representatives
SENATE BILL 1320 WITH HOUSE AMENDMENTS
Senator Nelson called SBi1320 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 1320 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to certain advance directives for medical treatment and medical treatment decisions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 166.002, Health and Safety Code, is amended by amending Subdivision (7) and adding Subdivision (15) to read as follows:
(7)ii"Health care or treatment decision" means consent, refusal to consent, or withdrawal of consent to health care, treatment, service, or a procedure to maintain, diagnose, or treat an individual's physical or mental condition, including such a decision on behalf of a minor.
3846 78th Legislature — Regular Session 82nd Day
(15)ii"Cardiopulmonary resuscitation" means any medical intervention used to restore circulatory or respiratory function that has ceased.
SECTIONi2.iiSubchapter A, Chapter 166, Health and Safety Code, is amended by adding Section 166.010 to read as follows:
Sec.i166.010.iiAPPLICABILITY OF FEDERAL LAW RELATING TO CHILD ABUSE AND NEGLECT. This chapter is subject to applicable federal law and regulations relating to child abuse and neglect to the extent applicable to the state based on its receipt of federal funds.
SECTIONi3.iiSection 166.044, Health and Safety Code, is amended by adding Subsection (e) to read as follows:
(e)iiA physician, nurse, or other person acting under the direction of a physician who participates in the withholding or withdrawal of cardiopulmonary resuscitation from a patient who, in reasonable medical judgment, has a terminal or irreversible condition is not civilly or criminally liable for failure to provide resuscitation if, in reasonable medical judgment, in the event of cardiopulmonary arrest, the patient's death would occur within minutes to hours regardless of the provision of resuscitation. Nothing in this section may be construed to limit the authority of a physician, nurse, or other person to comply with an otherwise valid and applicable patient's directive to physicians or out-of-hospital do-not-resuscitate order, or the decision of a competent patient or the person responsible for the health care decisions of the patient, that authorizes a do-not-resuscitate order under other circumstances.
SECTIONi4.iiThe heading to Section 166.046, Health and Safety Code, is amended to read as follows:
Sec.i166.046.iiPROCEDURE IF NOT EFFECTUATING A DIRECTIVE OR TREATMENT DECISION.
SECTIONi5.iiSection 166.046, Health And Safety Code, is amended by amending Subsections (a), (b), and (e) and adding Subsection (e-1) to read as follows:
(a)iiIf an attending physician refuses to honor a patient's advance directive or a
health care or treatment decision made by or on behalf of a patient [under Section
166.039], the physician's refusal shall be reviewed by an ethics or medical committee.
The attending physician may not be a member of that committee. The patient shall be
given life-sustaining treatment during the review.
(b)iiThe patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:
(1)iishall be informed of the committee review process not less than 48 hours
before the meeting called to discuss the patient's directive, unless the time period is
waived by mutual agreement; [and]
(2)iiat the time of being so informed, shall be provided:
(A)iia copy of the appropriate statement set forth in Section 166.052; and
(B)iia copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the Texas Health Care Information Council under Section 166.053; and
(3)iiis entitled to:
(A)iiattend the meeting; and
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(B)iireceive a written explanation of the decision reached during the review process.
(e)iiIf the patient or the person responsible for the health care decisions of the
patient is requesting life-sustaining treatment that the attending physician has decided
and the review process has affirmed [have decided] is inappropriate treatment, the
patient shall be given available life-sustaining treatment pending transfer under
Subsection (d). The patient is responsible for any costs incurred in transferring the
patient to another facility. The physician and the health care facility are not obligated
to provide life-sustaining treatment after the 10th day after the written decision
required under Subsection (b) is provided to the patient or the person responsible for
the health care decisions of the patient unless ordered to do so under Subsection (g).
(e-1)iiIf during a previous admission to a facility a patient's attending physician and the review process under Subsection (b) have determined that life-sustaining treatment is inappropriate, and the patient is readmitted to the same facility within six months from the date of the decision reached during the review process conducted upon the previous admission, Subsections (b) through (e) need not be followed if the patient's attending physician and a consulting physician who is a member of the ethics or medical committee of the facility document on the patient's readmission that the patient's condition either has not improved or has deteriorated since the review process was conducted.
SECTIONi6.iiSubchapter B, Chapter 166, Health and Safety Code, is amended by adding Sections 166.052 and 166.053 to read as follows:
Sec.i166.052.iiSTATEMENTS EXPLAINING PATIENT'S RIGHT TO TRANSFER.ii(a)iiIn cases in which the attending physician refuses to honor an advance directive or treatment decision requesting the provision of life-sustaining treatment, the statement required by Section 166.046(b)(2)(A) shall be in substantially the following form:
When There Is A Disagreement About Medical Treatment: The Physician Recommends Against Life-Sustaining Treatment That You Wish To Continue
You have been given this information because you have requested life-sustaining treatment,* which the attending physician believes is not appropriate. This information is being provided to help you understand state law, your rights, and the resources available to you in such circumstances. It outlines the process for resolving disagreements about treatment among patients, families, and physicians. It is based upon Section 166.046 of the Texas Advance Directives Act, codified in Chapter 166 of the Texas Health and Safety Code.
When an attending physician refuses to comply with an advance directive or other request for life-sustaining treatment because of the physician's judgment that the treatment would be inappropriate, he or she will request that the case be reviewed by an ethics or medical committee. Life-sustaining treatment will be provided through the review.
You will receive notification of this review at least 48 hours before a meeting of the committee related to your case. You are entitled to attend the meeting. With your agreement, the meeting may be held sooner than 48 hours, if possible.
If you wish, you are entitled to receive a written explanation of the decision reached during the review process.
3848 78th Legislature — Regular Session 82nd Day
If after this review process both the attending physician and the ethics or medical committee conclude that life-sustaining treatment is inappropriate and yet you continue to request such treatment, then the following procedure will occur:
1.iiThe physician, with the help of the health care facility, will assist you in trying to find a physician and facility willing to provide the requested treatment.
2.iiYou are being given a list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer, or to assist in locating a provider willing to accept transfer, maintained by the Texas Health Care Information Council. You may wish to contact providers or referral groups on the list or others of your choice to get help in arranging a transfer.
3.iiThe patient will continue to be given the requested life-sustaining treatment until he or she can be transferred to a willing provider for up to 10 days from the time you were given the committee's written decision that life-sustaining treatment is not appropriate.
4.iiIf a transfer can be arranged, the patient will be responsible for the costs of the transfer.
5.iiIf a provider cannot be found willing to give the requested treatment within 10 days, life-sustaining treatment may be withdrawn on the 11th day unless a court of law has granted an extension.
6.iiYou may ask the appropriate district or county court to extend the 10-day period if the court finds that there is a reasonable expectation that a physician or health care facility willing to provide life-sustaining treatment will be found if the extension is granted. You will probably need a lawyer's help if you wish to consider seeking this type of extension.
*ii"Life-sustaining treatment" means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.
(b)iiIn cases in which the attending physician refuses to comply with an advance directive or treatment decision requesting the withholding or withdrawal of life-sustaining treatment, the statement required by Section 166.046(b)(2)(A) shall be in substantially the following form:
When There Is A Disagreement About Medical Treatment: The Physician Recommends Life-Sustaining Treatment That You Wish To Stop
You have been given this information because you have requested the withdrawal or withholding of life-sustaining treatment* and the attending physician refuses to comply with that request. The information is being provided to help you understand state law, your rights, and the resources available to you in such circumstances. It outlines the process for resolving disagreements about treatment among patients, families, and physicians. It is based upon Section 166.046 of the Texas Advance Directives Act, codified in Chapter 166 of the Texas Health and Safety Code.
Friday, May 30, 2003 SENATE JOURNAL 3849
When an attending physician refuses to comply with an advance directive or other request for withdrawal or withholding of life-sustaining treatment for any reason, he or she will request that the case be reviewed by an ethics or medical committee. Life-sustaining treatment will be provided through the review.
You will receive notification of this review at least 48 hours before a meeting of the committee related to your case. You are entitled to attend the meeting. With your agreement, the meeting may be held sooner than 48 hours, if possible.
If you wish, you are entitled to receive a written explanation of the decision reached during the review process.
If you or the attending physician do not agree with the decision reached during the review process, and the attending physician still refuses to comply with your request to withhold or withdraw life-sustaining treatment, then the following procedure will occur:
1.iiThe physician, with the help of the health care facility, will assist you in trying to find a physician and facility willing to withdraw or withhold the life-sustaining treatment.
2.iiYou are being given a list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer, or to assist in locating a provider willing to accept transfer, maintained by the Texas Health Care Information Council. You may wish to contact providers or referral groups on the list or others of your choice to get help in arranging a transfer.
*ii"Life-sustaining treatment" means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.
(c)iiAn attending physician or health care facility may, if it chooses, include any additional information concerning the physician's or facility's policy, perspective, experience, or review procedure.
Sec.i166.053.iiREGISTRY TO ASSIST TRANSFERS. (a) The Texas Health Care Information Council shall maintain a registry listing the identity of and contact information for health care providers and referral groups, situated inside and outside this state, that have voluntarily notified the council they may consider accepting or may assist in locating a provider willing to accept transfer of a patient under Section 166.045 or 166.046.
(b)iiThe listing of a provider or referral group in the registry described in this section does not obligate the provider or group to accept transfer of or provide services to any particular patient.
(c)iiThe Texas Health Care Information Council shall post the current registry list on its website in a form appropriate for easy comprehension by patients and persons responsible for the health care decisions of patients and shall provide a clearly identifiable link from its home page to the registry page. The list shall separately indicate those providers and groups that have indicated their interest in assisting the transfer of:
3850 78th Legislature — Regular Session 82nd Day
(1)iithose patients on whose behalf life-sustaining treatment is being sought;
(2)iithose patients on whose behalf the withholding or withdrawal of life-sustaining treatment is being sought; and
(3)iipatients described in both Subdivisions (1) and (2).
(d)iiThe registry list described in this section shall include the following disclaimer:
"This registry lists providers and groups that have indicated to the Texas Health Care Information Council their interest in assisting the transfer of patients in the circumstances described, and is provided for information purposes only. Neither the Texas Health Care Information Council nor the State of Texas endorses or assumes any responsibility for any representation, claim, or act of the listed providers or groups."
SECTIONi7.iiSubchapter C, Chapter 166, Health and Safety Code, is amended by adding Section 166.102 to read as follows:
Sec.i166.102.iiPHYSICIAN'S DNR ORDER MAY BE HONORED BY HEALTH CARE PERSONNEL OTHER THAN EMERGENCY MEDICAL SERVICES PERSONNEL. (a) Except as provided by Subsection (b), a licensed nurse or person providing health care services in an out-of-hospital setting may honor a physician's do-not-resuscitate order.
(b)iiWhen responding to a call for assistance, emergency medical services personnel shall honor only a properly executed or issued out-of-hospital DNR order or prescribed DNR identification device in accordance with this subchapter.
SECTIONi8.iiSection 166.081(1), Health and Safety Code, is repealed.
SECTIONi9.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.
Floor Amendment No. 1
CSSB 1320 is amended as follows:
A). Strike SECTION 3 in its entirety, and renumber the remaining sections accordingly.
B). Section 166.046(b), Health and Safety Code, as amended by SECTION 5 is amended to read as follows:
(b) The patient or the person responsible for the health care decisions of the individual who has made the decision regarding the directive or treatment decision:
(1) may be given a written description of the ethics or medical committee review process and any other policies and procedures related to section 166.046 adopted by the health care facility;
(2)[(1)] shall be informed of the committee review process not less than 48
hours before the meeting called to discuss the patient's directive, unless the time
period is waived by mutual agreement; [and]
(3)[(2)] at the time of being so informed, shall be provided:
(A) a copy of the appropriate statement set forth in Section 166.052; and
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(B) a copy of the registry list of health care providers and referral groups that have volunteered their readiness to consider accepting transfer or to assist in locating a provider willing to accept transfer that is posted on the website maintained by the Texas Health Care Information Council under Section 166.053; and
(4)[(3)] is entitled to:
(A) attend the meeting; and
(B) receive a written explanation of the decision reached during the review process."
C). Section 166.052(a) and (b), Health and Safety Code, as added by SECTION 6, is amended as follows:
(1) On page 5, line 16, strike "he or she will request that" and between "case" and "be", insert "will";
(2) On page 5, line 23, strike "If you wish, you" and substitute "You";
(3) On page 6, line 12, strike "the requested";
(4) On page 6, line 21, strike "on the 11th day";
(5) On page 6, line 27 and page 7, line 1, strike "You will probably need a lawyer's help if you wish to consider seeking this type of extension.";
(6) On page 8, lines 3-4, strike "he or she will request that" and between "case" and "be", insert "will"; and
(7) On page 8, line 10, strike "If you wish, you" and substitute "You".
Floor Amendment No. 2
Amend CSSBi1320 by adding the following appropriately numbered section and renumbering subsequent sections accordingly:
SECTIONi____.iiSection 166.085, Health and Safety Code, is amended to read as follows:
Sec.i166.085.iiEXECUTION OF OUT-OF-HOSPITAL DNR ORDER ON BEHALF OF A MINOR. (a) The following persons may execute an out-of-hospital DNR order on behalf of a minor:
(1)iithe minor's parents;
(2)iithe minor's legal guardian; or
(3)iithe minor's managing conservator.
(b)iiA person listed under Subsection (a) may not execute an out-of-hospital DNR order unless the minor has been diagnosed by a physician as suffering from a terminal or irreversible condition.
The amendments were read.
Senator Nelson moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
3852 78th Legislature — Regular Session 82nd Day
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1320 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Nelson, Chair; Janek, Deuell, Carona, and Gallegos.
CONFERENCE COMMITTEE ON HOUSE BILL 335
Senator Lindsay called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi335 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi335 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Lindsay, Chair; Deuell, Brimer, Gallegos, and Wentworth.
SENATE BILL 624 WITH HOUSE AMENDMENTS
Senator Lindsay called SBi624 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Committee Amendment No. 1
Amend SBi624 as follows:
(1)iiOn page 3, line 8, between "Travis County," and "Harris County," insert the following: "Williamson County,".
Floor Amendment No. 2
Amend SB 624 as follows:
(1) In SECTION 2 of the bill, strike proposed Section 49.107(h), Water Code (House committee printing, page 2, lines 17-22), and substitute the following:
(h) To the extent authorized by Section 59, Article XVI, Texas Constitution, an operation and maintenance tax to be used for recreational facilities, as defined by Section 49.462, levied by a district located in a county with a population of more than 3.3 million or in a county adjacent to that county may not exceed 10 cents per $100 of assessed valuation of taxable property in the district.
(2) Strike SECTION 5 of the bill (House committee printing, page 2, line 26, through page 3, line 3), and substitute the following:
SECTION 5. Section 49.464, Water Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:
(a) Except as provided by Section 49.4645, a [A] district may not issue bonds
supported by ad valorem taxes to pay for the development and maintenance of
recreational facilities.
Friday, May 30, 2003 SENATE JOURNAL 3853
(d) A district may issue bonds payable solely from revenues by resolution or order of the board without an election.
(3) In SECTION 6 of the bill, in proposed Section 49.4645(a), Water Code (House committee printing, page 3, line 8), between "in" and "Travis", insert "Bastrop County, Bexar County, Waller County,".
(4) In SECTION 6 of the bill, in proposed Section 49.4645(a), Water Code (House committee printing, page 3, line 9), strike "Fort Bend County, or Montgomery County" and substitute "or Fort Bend County".
(5) In SECTION 6 of the bill, in proposed Section 49.4645(a), Water Code (House committee printing, page 3, lines 21-22), strike "The board may issue bonds payable solely from revenues by resolution or by order of the board without an election.".
The amendments were read.
Senator Lindsay moved to concur in the House amendments to SBi624.
The motion prevailed by a viva voce vote.
SENATE BILL 1652 WITH HOUSE AMENDMENTS
Senator Shapiro called SBi1652 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer, Senator Armbrister in Chair, laid the bill and the House amendments before the Senate.
Amendment
Amend SB 1652 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to institutions of higher education, including the administration, operation, governance, and financing of those institutions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLEi1.iiFINANCIAL MATTERS
SECTIONi1.01.iiSubsection (e), Section 11.11, Tax Code, is amended to read as follows:
(e)iiProperty [It is provided, however, that property] that is held or dedicated for
the support, maintenance, or benefit of an institution of higher education as defined by
Section 61.003 [in Chapter 61], [Texas] Education Code, but is not rented or leased
for compensation to a private business enterprise to be used by it for a purpose not
related to the performance of the duties and functions of the state or institution or is
not rented or leased to provide private residential housing to members of the public
other than students and employees of the state or institution is not taxable. If a portion
of property of an institution of higher education is used for public purposes and a
portion is not used for those purposes, the portion of the property used for public
purposes is exempt under this subsection. All oil, gas, and other mineral interests
owned by an institution of higher education are exempt from all ad valorem taxes.
Property bequeathed to an institution is exempt from the assessment of ad valorem
taxes from the date of the decedent's death, unless:
3854 78th Legislature — Regular Session 82nd Day
(1)iithe property is leased for compensation to a private business enterprise as provided in this subsection; or
(2)iithe transfer of the property to an institution is contested in a probate
court, in which[. In this] case[,] ad valorem taxes shall be assessed to the estate of the
decedent until the final determination of the disposition of the property is made. The
property is exempt from the assessment of ad valorem taxes upon vesting of the
property in the institution.
SECTIONi1.02.iiSubdivision (2), Section 2254.021, Government Code, is amended to read as follows:
(2)ii"Major consulting services contract" means a consulting services contract for which it is reasonably foreseeable that the value of the contract will exceed $15,000, or $25,000 for an institution of higher education other than a public junior college.
SECTIONi1.03.iiSection 2254.028, Government Code, is amended by adding Subsection (c) to read as follows:
(c)iiSubsection (a)(3) does not apply to a major consulting services contract to be entered into by an institution of higher education other than a public junior college if the institution includes in the invitation published under Section 2254.029 a finding by the chief executive officer of the institution that the consulting services are necessary and an explanation of that finding.
SECTIONi1.04.iiSubsections (b) and (d), Section 2254.031, Government Code, are amended to read as follows:
(b)iiA state agency that intends to renew a contract that is not a major consulting services contract shall comply with Sections 2254.028 and 2254.029 if the original contract and the renewal contract have a reasonably foreseeable value totaling more than $15,000, or $25,000 for an institution of higher education other than a public junior college.
(d)iiA state agency that intends to amend or extend a contract that is not a major consulting services contract shall comply with Sections 2254.028 and 2254.029 if the original contract and the amendment or extension have a reasonably foreseeable value totaling more than $15,000, or $25,000 for an institution of higher education other than a public junior college.
SECTIONi1.05.iiSection 54.5011, Education Code, is amended to read as follows:
Sec.i54.5011.iiCHARGES AND [CREDIT CARD] FEES FOR CERTAIN
PAYMENTS. (a) This section applies to a payment of tuition, a fee, or another
charge to an institution of higher education that is made or authorized in person, by
mail, by telephone call, or through the Internet by means of:
(1)iian electronic funds transfer; or
(2)iia credit card.
(b)iiAn institution of higher education may charge a fee or other amount in connection with a payment to which this section applies, in addition to the amount of the tuition, fee, or other charge being paid, including:
(1)iia discount, convenience, or service charge for the transaction; or
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(2)iia service charge in connection with a payment transaction that is
dishonored or refused for lack of funds or insufficient funds [that accepts payment of
tuition, a fee, or other charge by credit card may charge the credit card user a fee for
processing the payment].
(c)i[(b)]iiA fee or other charge [charged] under this section must be in an amount
reasonably related to the expense incurred by the institution in processing and
handling [may not exceed the amount charged the institution by the issuer of the credit
card in connection with] the payment or payment transaction.
(d)i[(c)]iiBefore accepting a payment by credit card, the institution shall notify
the student of any fee to be charged under this section.
SECTIONi1.06.iiSection 153.006, Education Code, is amended to read as follows:
Sec.i153.006.iiSUPPORT OF CENTERS. (a) In order to carry out the purposes of this chapter and to support the activities of centers described in this chapter, to the extent authorized by its governing board, an institution of higher education may:
(1)iienter into agreements establishing royalties, fees, and other consideration for technology developed in whole or part by it;
(2)iiaccept equity interests in organizations that license, manage, or otherwise administer rights to technology belonging to it or under its control in exchange for such rights, in whole or in part;
(3)iiaccept equity interests in organizations that license or otherwise have rights in its technology as consideration for its providing monetary, business, scientific, or engineering services or technical assistance;
(4)iiuse income from the commercialization of technology to fund the activities of the center;
(5)iisolicit, accept, and administer gifts, grants, and donations; [and]
(6)iienter into contracts for legal services with a competent lawyer or law firm to:
(A)iiprepare, file, pursue, and maintain patent applications in the United States or foreign jurisdictions;
(B)iisecure copyright protection for computer software;
(C)iiprepare, file, and pursue trademark and service mark applications;
(D)iipursue litigation to prevent or stop infringement of any intellectual property rights of the institution; or
(E)iihandle any other legal matter related to the operation and activities of the center; and
(7)iienter into such other business arrangements as may be appropriate for achieving the purposes of this chapter.
(b)iiThe fees or other compensation paid in connection with a legal services contract authorized by Subsection (a) may be paid on a contingency fee basis, at an hourly rate, or on another basis the governing board of the institution considers appropriate.
SECTIONi1.07.iiSection 2254.102, Government Code, is amended by adding Subsection (c) to read as follows:
(c)iiThis subchapter does not apply to a contract for legal services entered into by an institution of higher education under Section 153.006, Education Code.
3856 78th Legislature — Regular Session 82nd Day
SECTIONi1.08.iiSubsection (d), Section 404.097, Government Code, is amended to read as follows:
(d)iiLegal fees and expenses may be paid from the recovered funds under a contingent fee contract for legal services only:
(1)iiafter the funds are deposited in accordance with this section; and
(2)iiin accordance with Subchapter C, Chapter 2254, if that subchapter applies to the contract.
SECTIONi1.09.iiSection 21.042, Property Code, is amended by adding Subsection (f) to read as follows:
(f)iiIn awarding compensation or assessing damages for a condemnation by an institution of higher education, as defined by Section 61.003, Education Code, the special commissioners may not include in the compensation or damages any amount that compensates for, or is based on the present value of, an exemption from ad valorem taxation applicable to the property before its condemnation.
SECTIONi1.10.iiSection 55.004, Property Code, is amended by adding Subsection (f) to read as follows:
(f)iiIf the physician is employed in that capacity by an institution of higher education, as defined by Section 61.003, Education Code, and the lien does not include the amount of the physician's reasonable and necessary charges described by Subsection (c), the physician has a lien on the cause of action in the same manner as a hospital under this chapter. The lien is subject to provisions of this chapter applicable to a hospital lien, and the physician or the physician's employing institution may secure and enforce the lien in the manner provided by this chapter.
SECTIONi1.11.iiSubchapter A, Chapter 56, Education Code, is amended by adding Section 56.004 to read as follows:
Sec.i56.004.iiFILING FEES IN SUITS TO COLLECT DELINQUENT STUDENT LOANS. Notwithstanding any other law, if an institution of higher education brings suit to collect or enforce the repayment of a delinquent student loan, the institution is required to pay in advance one-half of the applicable filing fee and other costs payable in advance to the clerk of the court. If the defaulting borrower prevails in the suit, the institution shall pay the remaining one-half of the filing fee and costs on the date of the final disposition of the suit. If the institution prevails in the suit:
(1)iithe judgment shall include a finding that the defaulting borrower is liable to the institution for the full amount of the filing fee and costs; and
(2)iithe institution shall pay the remaining one-half of the filing fee and costs not later than the seventh day after the date on which the defaulting borrower pays to the institution the full amount, including the amount of the filing fee and costs, for which the borrower is liable to the institution.
SECTIONi1.12.iiSection 403.072, Government Code, is amended by adding Subsection (d) to read as follows:
(d)iiIn its rules adopted under this section, the comptroller may not require an institution of higher education, as defined by Section 61.003, Education Code, that processes its own payroll to submit payroll information to the comptroller relating to individual employees of the institution that is not required by the comptroller to make any distribution of state money to the institution to cover the institution's payroll.
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SECTIONi1.13.iiSection 56.004, Education Code, as added by this article, applies only to a suit filed by an institution to collect or enforce the repayment of a delinquent student loan on or after the effective date of this Act. A suit filed before the effective date is covered by the law in effect when the suit was filed, and the former law is continued in effect for that purpose.
ARTICLEi2.iiHUMAN RESOURCES
SECTIONi2.01.iiSection 609.001, Government Code, is amended by adding Subdivision (2-a) and amending Subdivision (8) to read as follows:
(2-a)ii"Institution of higher education" means an institution of higher education as defined by Section 61.003, Education Code, other than a public junior college.
(8)ii"State agency" means a board, commission, office, department, or other
agency in the executive, judicial, or legislative branch of state government, including
an institution of higher education [as defined by Section 61.003, Education Code, but
does not include a public junior college].
SECTIONi2.02.iiSection 609.002, Government Code, is amended to read as follows:
Sec.i609.002.iiQUALIFICATIONS FOR QUALIFIED VENDOR. A vendor
may be a qualified vendor for a 457 plan or a 401(k) plan created by a political
subdivision, [or] group of political subdivisions, an institution of higher education, or
a group of institutions of higher education only if the vendor satisfies the requirements
for participation in the deferred compensation plan provided by:
(1)iithis chapter; and
(2)iithe plan administrator.
SECTIONi2.03.iiSubsection (b), Section 609.003, Government Code, is amended to read as follows:
(b)iiThe approval of an investment product for a 401(k) plan of a political
subdivision, [or] group of political subdivisions, an institution of higher education, or
a group of institutions of higher education, or for a 457 plan of an institution of higher
education or group of institutions of higher education, must be in accordance with a
contract between the plan administrator and a qualified vendor.
SECTIONi2.04.iiSection 609.007, Government Code, is amended by adding Subsection (e) to read as follows:
(e)iiAn institution of higher education may contract with an employee of the institution of higher education for the deferment of any part of the employee's compensation.
SECTIONi2.05.iiChapter 609, Government Code, is amended by adding Subchapter D to read as follows:
SUBCHAPTERiD.iiDEFERRED COMPENSATION PLANS FOR
EMPLOYEES OF INSTITUTIONS OF HIGHER EDUCATION
Sec.i609.701.iiDEFINITIONS. In this subchapter:
(1)ii"Deferred compensation plan" means a plan established under this subchapter.
(2)ii"Deferred compensation trust fund" means the fund in which deferred amounts and investment income of participating employees are temporarily held.
3858 78th Legislature — Regular Session 82nd Day
(3)ii"Investment product" includes a fixed or variable rate annuity, mutual fund, certificate of deposit, moneyimarket account, passbook savings account, stock, bond, obligation, and any other investment product not prohibited under Section 457, Internal Revenue Code of 1986, as amended.
Sec.i609.702.iiCREATION OF PLAN. (a) An institution of higher education may create and administer for its employees a 457 plan under this subchapter.
(b)iiAn institution of higher education may contract with other institutions of higher education to create a single deferred compensation plan for their employees under Subsection (a).
Sec.i609.703.iiDESIGNATION OF PLAN ADMINISTRATOR. (a) An institution of higher education that creates a deferred compensation plan shall designate a plan administrator for the plan.
(b)iiInstitutions of higher education that create a single plan shall designate jointly a plan administrator for the plan.
(c)iiA plan administrator may be an employee, a nonprofit corporation, an individual, a trustee, a private entity, another institution of higher education, or an association of institutions of higher education.
Sec.i609.704.iiREMOVAL OF PLAN ADMINISTRATOR. An institution of higher education or group of institutions of higher education that designates a plan administrator may remove the plan administrator at any time unless specifically provided otherwise by contract.
Sec.i609.705.iiOVERSIGHT COMMITTEE. (a) An institution of higher education or group of institutions of higher education that creates a deferred compensation plan may direct and supervise the activities of the plan administrator through an oversight committee.
(b)iiThe institution of higher education or group shall determine the authority, activities, and composition of an oversight committee created under this section.
Sec.i609.706.iiAUTHORITY OF PLAN ADMINISTRATOR. (a) A plan administrator shall execute necessary contracts for the administration of the deferred compensation plan, subject to any prior approval required by the institution of higher education or group of institutions of higher education that created the plan.
(b)iiA plan administrator shall develop and implement criteria and procedures for any matter not covered by this subchapter that the plan administrator considers appropriate for the operation of the deferred compensation plan.
Sec.i609.707.iiINVESTMENT AND TRANSFER OF DEFERRED AMOUNTS AND INCOME. The plan administrator shall:
(1)iiinvest the deferred amounts and investment income of a participating employee in the qualified investment products designatediby the employee; and
(2)iitransfer the deferred amounts and investment income of a participating employee from one qualified investment product to another on the employee's request.
Sec.i609.708.iiPARTICIPATION OF INDEPENDENT CONTRACTORS. (a)iiThe plan administrator shall determine whether a person who provides services as an independent contractor to an institution of higher education that created the plan may participate in the deferred compensation plan.
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(b)iiFor the purposes of Subchapter A and this subchapter, an independent contractor that is authorized to participate in a deferred compensation plan is treated as an employee of the institution of higher education creating the plan.
Sec.i609.709.iiCHANGING AMOUNT DEFERRED. An employee may change the amount to be deferred by notifying the plan administrator of the change in accordance with the requirements of the administrator.
Sec.i609.710.iiDISTRIBUTION. A plan administrator shall develop and implement procedures for:
(1)iithe designation by a participating employee of a beneficiary to receive the employee's deferred amounts and investment income after the employee's death; and
(2)iithe distribution of a participating employee's deferred amounts and investment income to the employee or the employee's beneficiary, as appropriate, because of the employee's death or termination of employment, a financial hardship, or another reason permissible under federal law.
Sec.i609.711.iiFEE. (a)iiAn institution of higher education or group of institutions of higher education that creates a deferred compensation plan may assess a fee for the administration of the plan against each participating employee.
(b)iiThe institution of higher education or group of institutions of higher education shall determine the method for computing and assessing the fee.
Sec.i609.712.iiEVALUATION AND APPROVAL OF QUALIFIED VENDOR. (a)iiA plan administrator shall develop and implement criteria and procedures for evaluating a vendor's application to become a qualified vendor.
(b)iiA plan administrator may not approve a vendor's application if the vendor is:
(1)iia state or national bank or savings and loan association, the deposits of which are not insured by the Federal Deposit Insurance Corporation;
(2)iia credit union, the deposits of which are not insured by the National Credit Union Administration Board; or
(3)iian insurance company that:
(A)iiis not a member of the Texas Life, Accident, Health, and HospitaliService Insurance Guaranty Association; or
(B)iiis an impaired or insolvent insurer under Article 21.28-D, Insurance Code.
(c)iiOn written request, the Texas Department of Insurance shall certify in writing to a plan administrator whether an insurance company is prohibited from being approved as a qualified vendor under Subsection (b)(3). The plan administrator may rely on the certification.
Sec.i609.713.iiNUMBER OF VENDORS UNDER 457 PLAN. The plan administrator of a 457 plan shall determine the minimum and maximum number of vendors that may be qualified vendors for the plan at any given time.
Sec.i609.714.iiCONTRACT WITH QUALIFIED VENDOR. (a)iiAfter a plan administrator approves an application of a vendor to become a qualified vendor, the plan administrator shall execute a written contract with the vendor to participate in the deferred compensation plan.
3860 78th Legislature — Regular Session 82nd Day
(b)iiA plan administrator shall develop and implement criteria and procedures for evaluating a qualified vendor's investment products to determine whether those products are acceptable as qualified investment products.
(c)iiA qualified vendor may offer to employees participating in a 457 plan only qualified investment products.
Sec.i609.715.iiREGULATION OF QUALIFIED VENDORS. A plan administrator shall develop and implement requirements for qualified vendors and their employees concerning disclosure, reporting, standards of conduct, solicitation, advertising, relationships with participating employees, the nature and quality of services provided to those employees, and other matters.
Sec.i609.716.iiTRANSFER ON VENDOR'S FAILURE. An institution of higher education or group of institutions of higher education that creates a deferred compensation plan may authorize or require as a part of the plan that the plan administrator immediately transfer to the deferred compensation trust fund all deferred amounts and investment income from a vendor who fails to satisfy the requirements of this subchapter or the plan administrator.
SECTIONi2.06.iiSubsection (a), Section 51.964, Education Code, is amended to read as follows:
(a)iiAn institution of higher education as defined by Section 61.003 may employ a person who has retired under the Teacher Retirement System (Subtitle C, Title 8, Government Code) or the optional retirement program (Chapter 830, Government Code) if:
(1)iithe governing board of the institution determines that the employment is in the best interests of the institution; and
(2)iithe person has been retired for at least 30 days [one calendar year]
before the effective date of the employment, except that a person retired under the
optional retirement program may be rehired after retirement without a break in
service.
SECTIONi2.07.iiSubchapter A, Chapter 51, Education Code, is amended by adding Section 51.0065 to read as follows:
Sec.i51.0065.iiAPPLICABILITY OF ACROSS-THE-BOARD SALARY INCREASE. An institution of higher education that has adopted a pay-for-performance program that is in effect when an across-the-board salary increase for state employees made by an appropriation act of the legislature takes effect is entitled to receive any appropriation made for purposes of the across-the-board salary increase, and may use the amount appropriated for an across-the-board salary increase or for increases in compensation under the institution's pay-for-performance program.
SECTIONi2.08.iiSection 1601.102, Insurance Code, is amended by amending Subsection (b) and adding Subsections (f) and (g) to read as follows:
(b)iiAn individual is eligible to participate in the uniform program as provided by Subsection (a) if:
(1)iithe individual has at least 10 [three] years of service with a system for
which the individual was eligible to participate in the uniform program under Section
1601.101;
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(2)iithe individual's last state employment before retirement was with that system; and
(3)iithe individual retires under the jurisdiction of:
(A)iithe Teacher [Teachers] Retirement System of Texas under Subtitle
C, Title 8, Government Code;
(B)iithe Employees Retirement System of Texas; or
(C)iisubject to Subsection (c):
(i)iithe optional retirement program established by Chapter 830, Government Code; or
(ii)iiany other federal or state statutory retirement program to which the system has made employer contributions.
(f)iiNotwithstanding Subsection (b), an individual to whom this subsection applies is eligible to participate in the uniform program as provided by Subsection (a) if:
(1)iithe individual has at least three years of service with a system for which the individual was eligible to participate in the uniform program under Section 1601.101;
(2)iithe individual's last state employment before retirement was with that system; and
(3)iithe individual retires under the jurisdiction of:
(A)iithe Teacher Retirement System of Texas under Subtitle C, Title 8, Government Code;
(B)iithe Employees Retirement System of Texas; or
(C)iisubject to Subsection (c):
(i)iithe optional retirement program established by Chapter 830, Government Code; or
(ii)iiany other federal or state statutory retirement program to which the system has made employer contributions.
(g)iiSubsection (f) applies only to a person who, on August 31, 2003:
(1)iiwas eligible to participate in the uniform program as an employee under Section 1601.101; or
(2)iiwas eligible to participate in the uniform program as a retired employee under this section as this section existed on January 1, 2003.
SECTIONi2.09.iiThe heading to Section 51.961, Education Code, as added by Chapter 118, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i51.961.iiLEAVE PROVISIONS FOR [CERTAIN] EMPLOYEES OF
UNIVERSITY SYSTEM OR COMPONENT INSTITUTION OF SYSTEM.
SECTIONi2.10.iiSubsections (a) and (b), Section 51.961, Education Code, as added by Chapter 118, Acts of the 77th Legislature, Regular Session, 2001, are amended to read as follows:
(a)iiIn this section:
(1)ii"Governing board[,]" ["medical and dental unit,"] and "university
system" have the meanings assigned by Section 61.003.
(2)ii"Leave" includes vacation leave, sick leave, and holidays.
3862 78th Legislature — Regular Session 82nd Day
(b)iiThe governing board of a university system may adopt a comprehensive
leave policy that applies to employees [working in a hospital or clinic of a medical
and dental unit] of the university system or any component institution of the system.
SECTIONi2.11.iiSection 1601.101, Insurance Code, as effective Junei1, 2003, is amended by adding Subsection (d) to read as follows:
(d)iiAn individual is eligible to participate in the uniform program as provided by Subsection (a) if the individual is serving a postdoctoral fellowship with an institution in a system.
SECTIONi2.12.iiThe changes in law made by this article to Sections 609.001, 609.002, 609.003, and 609.007, Government Code, and Subchapter D, Chapter 609, Government Code, as added by this article, take effect January 1, 2004.
SECTIONi2.13.iiSubsection (d), Section 1601.101, Insurance Code, as added by this article, takes effect September 1, 2003.
ARTICLEi3.iiINFORMATION TECHNOLOGY
SECTIONi3.01.iiSection 2054.100, Government Code, is amended by adding Subsection (d) to read as follows:
(d)iiThe biennial operating plan of an institution of higher education is required to include only operational projects and infrastructure projects. The instructions provided under Section 2054.101 may not require an institution of higher education to include other projects in the plan.
SECTIONi3.02.iiSection 2054.121, Government Code, is amended to read as follows:
Sec.i2054.121.iiCOORDINATION WITH [AMONG] INSTITUTIONS OF
HIGHER EDUCATION. (a) An institution of higher education shall coordinate its use
of information technologies with other such institutions to more effectively provide
education, research, and community service.
(b)iiThe Information Technology Council for Higher Education consists of the chief information officer or equivalent employee of:
(1)iiThe Texas A&M University System;
(2)iiThe University of Texas System;
(3)iiThe Texas State University System;
(4)iiThe University of North Texas System;
(5)iiThe University of Houston System;
(6)iiThe Texas Tech University System; and
(7)iione institution of higher education, other than a public junior college, not included in a university system listed in this subsection who is selected by a majority of the chief executive officers of all the institutions of higher education, other than public junior colleges, not included in a listed university system.
(c)iiBefore adopting a proposed rule that applies to institutions of higher education, the department shall prepare, in consultation with the council established by Subsection (b), an analysis of the impact of the rule on institutions of higher education that includes consideration of:
(1)iithe impact of the rule on the mission of higher education, student populations, and federal grant requirements;
(2)iialternate methods of implementation to achieve the purpose of the rule; and
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(3)iiexempting institutions of higher education from all or part of the requirements of the rule.
(d)iiThe department shall include its analysis as part of the notice of the proposed rule that the agency files with the secretary of state for publication in the Texas Register and shall provide copies to the governor, the lieutenant governor, and the speaker of the house of representatives.
(e)iiEach department rule that applies to institutions of higher education and that is in effect on September 1, 2003, ceases to apply to institutions of higher education on September 1, 2004, unless readopted by the department on or after September 1, 2003, in a form that expressly applies to institutions of higher education.
ARTICLEi4.iiREGULATORY AND ADMINISTRATIVE MATTERS
SECTIONi4.01.iiSubsection (i), Section 51.782, Education Code, is amended to read as follows:
(i)iiA construction manager-at-risk shall publicly advertise, in the manner
prescribed by the institution, and receive bids or proposals from trade contractors or
subcontractors for the performance of all major elements of the work other than [the
minor work that may be included in the] general conditions work. A construction
manager-at-risk may seek to perform major elements [portions] of the work itself if
the construction manager-at-risk submits its bid or proposal for that [those portions of
the] work in the same manner as all other trade contractors or subcontractors and if the
board determines that the construction manager-at-risk's bid or proposal provides the
best value for the institution. If no satisfactory bid or proposal for a major element of
the work is received in the time allowed, the board may negotiate directly with the
construction manager-at-risk for performance of that work. The board may negotiate
directly with the manager-at-risk for the performance of minor elements of the work
that are not included in major work packages.
SECTIONi4.02.iiSubchapter B, Chapter 502, Labor Code, is amended by adding Section 502.025 to read as follows:
Sec.i502.025.iiCOVERAGE FOR OUT-OF-STATE EMPLOYEES. (a)iiAn employee who performs services outside this state is entitled to benefits under this chapter even if the person:
(1)iiis hired or not hired in this state;
(2)iidoes not work in this state;
(3)iiworks both in this state and out of state;
(4)iiis injured outside this state; or
(5)iihas been outside this state for more than one year.
(b)iiAn employee who elects to pursue remedies provided by this state where the injury occurred is not entitled to benefits under this chapter.
SECTIONi4.03.iiSubchapter B, Chapter 503, Labor Code, is amended by adding Section 503.025 to read as follows:
Sec.i503.025.iiCOVERAGE FOR OUT-OF-STATE EMPLOYEES. (a)iiAn employee who performs services outside this state is entitled to benefits under this chapter even if the person:
(1)iiis hired or not hired in this state;
(2)iidoes not work in this state;
(3)iiworks both in this state and out of state;
3864 78th Legislature — Regular Session 82nd Day
(4)iiis injured outside this state; or
(5)iihas been outside this state for more than one year.
(b)iiAn employee who elects to pursue remedies provided by this state where the injury occurred is not entitled to benefits under this chapter.
SECTIONi4.04.iiSection 65.45, Education Code, is amended to read as follows:
Sec.i65.45.iiSCIENCE AND [CENTER FOR] TECHNOLOGY
DEVELOPMENT, MANAGEMENT, AND TRANSFER. (a) The legislature finds
that it is essential to the economic growth of the state that the potential for the
development and growth of high technology industry be promoted and expanded. As
a means of accomplishing this purpose, the board [is authorized to establish, maintain,
and support a Center for Technology Development and Transfer at The University of
Texas at Austin and may accept and administer, upon terms and conditions acceptable
to the board, gifts, grants, and donations to aid in the establishment, maintenance, and
operation of the center.
[(b)iiSubject to the rules and regulations of the board, the center] may enter into
[solicit and submit for approval of the board] agreements with individuals,
corporations, partnerships, associations, and local, state, or federal agencies for
funding the discovery, development, and commercialization of new products,
technology, and scientific information, including an agreement to manage a national
laboratory engaged in any of those endeavors. At the discretion of the board, research
facilities, funding, and personnel at the various component institutions of The
University of Texas System may be utilized to achieve the purposes of this section.
(b)i[(c)]iiAs a means of carrying out the purposes of [the center under] this
section, the board may, [either through the center or] through one or more
corporations incorporated by the board or under any other cooperative arrangement:
(1)iiown and license rights to products, technology, and scientific information;
(2)iiown shares in corporations engaged in the discovery, development,
manufacture, management, or marketing of products, technology, or scientific
information in this state or outside this state [under a license from the board, the
center, or a corporation owned or controlled by the board];
(3)iiparticipate [as the general partner or as a limited partner], either directly
or through a subsidiary corporation or other legal entity formed for that purpose, [in
limited partnerships, general partnerships, or joint ventures engaged] in the discovery,
development, manufacture, management, or marketing of products, technology, or
scientific information on behalf of the United States or a state or local governmental
entity [under a license from the board, the center, or a corporation owned or controlled
by the board]; and
(4)iicarry on and support such other activities as the board may deem appropriate for achieving the purposes of this section.
(c)ii[(d)iiThe Center for Technology Development and Transfer established by
this section shall not receive general revenue funds through special item appropriation
in the biennial General Appropriations Act.
Friday, May 30, 2003 SENATE JOURNAL 3865
[(e)]iiThe board may [Center for Technology Development and Transfer
established by this section shall] cooperate in any manner the board considers
appropriate [fully] with similar programs operated by other state-supported
institutions of higher education in this state or in other states.
SECTIONi4.05.iiThe heading to Section 551.121, Government Code, is amended to read as follows:
Sec.i551.121.iiGOVERNING BOARD OF INSTITUTION OF HIGHER EDUCATION; BOARD FOR LEASE OF UNIVERSITY LANDS.
SECTIONi4.06.iiSubsections (b), (c), and (e), Section 551.121, Government Code, are amended to read as follows:
(b)iiThis chapter does not prohibit the governing board of an institution of higher education or the Board for Lease of University Lands from holding an open or closed meeting by telephone conference call.
(c)iiA meeting held by telephone conference call may be held only if:
(1)iithe meeting is a special called meeting and immediate action is required; and
(2)iithe convening at one location of a quorum of the governing board or Board for Lease of University Lands is difficult or impossible.
(e)iiThe notice of a [the] telephone conference call meeting of a governing board
must specify as the location of the meeting the location where meetings of the
governing board are usually held. For a meeting of the governing board of a
university system, the notice must specify as the location of the meeting the board's
conference room at the university system office. For a meeting of the Board for Lease
of University Lands, the notice must specify as the location of the meeting a suitable
conference or meeting room at The University of Texas System office.
SECTIONi4.07.iiSubchapter C, Chapter 552, Government Code, is amended by adding Section 552.1235 to read as follows:
Sec.i552.1235.iiEXCEPTION:iiIDENTITY OF PRIVATE DONOR TO INSTITUTION OF HIGHER EDUCATION. (a) The name or other information that would tend to disclose the identity of a person, other than a governmental body, who makes a gift, grant, or donation of money or property to an institution of higher education or to another person with the intent that the money or property be transferred to an institution of higher education is excepted from the requirements of Section 552.021.
(b)iiSubsection (a) does not except from required disclosure other information relating to gifts, grants, and donations described by Subsection (a), including the amount or value of an individual gift, grant, or donation.
(c)iiIn this section, "institution of higher education" has the meaning assigned by Section 61.003, Education Code.
SECTIONi4.08.iiSubsection (a), Section 2161.123, Government Code, is amended to read as follows:
(a)iiEach state agency, including the commission, that is required to have a [shall
prepare as part of its] strategic plan under Chapter 2056 shall include in its strategic
plan a written plan for increasing the agency's use of historically underutilized
businesses in purchasing and public works contracting. The governing board of each
university system or institution of higher education not included in a university
3866 78th Legislature — Regular Session 82nd Day
SECTIONi4.09.iiSection 85.51, Education Code, is amended to read as follows:
Sec.i85.51.iiAUTHORITY TO LEASE. (a) The board may lease for oil, gas,
sulphur, mineral ore, and other mineral developments [to the highest bidder at public
auction] all lands and mineral interests [used for experimental stations and all other
lands] under its [exclusive] control, [or any part of those lands,] owned or in the future
acquired by the state for the use of the university system.
(b)iiThe board shall offer oil and gas leases at public auction, by sealed bid, by negotiated agreement, or through any other means that the board considers to be in the best interest of the university system.
SECTIONi4.10.iiSubchapter B, Chapter 85, Education Code, is amended by adding Section 85.18 to read as follows:
Sec.i85.18.iiMANDATORY VENUE. (a) Venue for a suit filed against the board or a member of the board in the member's official capacity is in Brazos County.
(b)iiVenue for a suit filed against The Texas A&M University System, any component of The Texas A&M University System, or any officer or employee of The Texas A&M University System is in the county in which the primary office of the chief executive officer of the system or component, as applicable, is located.
(c)iiThis section does not waive any defense to or immunity from suit or liability that may be asserted by an entity or individual described by this section.
(d)iiIn case of a conflict between this section and any other law, this section controls.
(e)iiThe changes in law made by the adoption of this section apply only to an action brought on or after September 1, 2003.
SECTIONi4.11.iiSections 502.025 and 503.025, Labor Code, as added by this article, apply only to a claim for workers' compensation benefits based on a compensable injury that occurs on or after the effective date of this Act. A claim based on a compensable injury that occurs before the effective date of this Act is governed by the law in effect on the date the injury occurred, and the former law is continued in effect for that purpose.
SECTIONi4.12.iiSection 552.1235, Government Code, as added by this article, applies to a request for information made before, on, or after the effective date of this Act.
ARTICLEi5.iiREPORTING
SECTIONi5.01.iiSubsections (b) and (c), Section 51.680, Education Code, are amended to read as follows:
(b)iiNo later than January 31, 1988, the commissioner of higher education shall
inform institutions of higher education whether their intellectual property policies
meet the minimum standards set out in Subsection (a) [of this section]. Thereafter, an
institution [institutions] of higher education may file or post on the institution's
website on the Internet in a manner available to the public policies amended to
overcome any failure to meet the [said] standards. The commissioner shall within a
reasonable time after receiving an amended policy inform the submitting institution
whether it meets the [said] standards.
Friday, May 30, 2003 SENATE JOURNAL 3867
(c)iiIt is a policy of the state that each institution of higher education shall at all
times after August 31, 1988, have [on file with the Coordinating Board, Texas College
and University System,]ia current copy of its intellectual property policies that[, which
policies shall at all times] meet the minimum standards set out in Subsection (a) on
file with the Texas Higher Education Coordinating Board or posted on the institution's
website on the Internet in a manner available to the public [of this section]. The
commissioner of higher education shall establish procedures for the monitoring of this
policy of the state.
SECTIONi5.02.ii Section 2152.064, Government Code, is amended by adding Subsection (f) to read as follows:
(f)iiThis section does not apply to a university system or an institution of higher education as those terms are defined by Section 61.003, Education Code.
SECTIONi5.03.iiSection 2155.448, Government Code, is amended by adding Subsection (d) to read as follows:
(d)iiThis section does not apply to a university system or an institution of higher education as those terms are defined by Section 61.003, Education Code.
SECTIONi5.04.iiSubsection (a), Section 2166.101, Government Code, is amended to read as follows:
(a)iiThis section applies to a state-owned building, including a building otherwise exempt from this chapter under Section 2166.003, except that this section does not apply to a building owned by an institution of higher education as defined by Section 61.003, Education Code.
SECTIONi5.05.iiSubsection (f), Section 2166.101, Government Code, is repealed.
ARTICLEi6.iiEFFECTIVE DATE
SECTIONi6.01.iiExcept as otherwise provided by this Act, this Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2003.
Floor Amendment No. 2
Amend CSSBi1652 (House committee printing) by adding the following appropriately numbered SECTION to Article 4 of the bill and renumbering subsequent SECTIONS of the bill accordingly:
SECTIONi____.iiSection 51.936, Education Code, is amended by amending Subsections (a) and (b) and adding Subsection (e) to read as follows:
(a)iiSubchapter F, Chapter 37, applies to a postsecondary [hazing at an]
educational institution under this section in the same manner as that subchapter
applies to a public or private high school.
(b)iiFor purposes of this section, in Subchapter F, Chapter 37, "postsecondary educational institution" means:
(1)iian institution of higher education as defined by Section 61.003;
(2)iia private or independent institution of higher education as defined by Section 61.003; or
(3)iia private postsecondary educational institution as defined by Section 61.302.
3868 78th Legislature — Regular Session 82nd Day
(e)iiSection 1.001(a) does not limit the application of this section to postsecondary educational institutions supported in whole or part by state tax funds.
Floor Amendment No. 3
Amend CSSB 1652 by adding the following appropriately numbered SECTIONS to ARTICLE 1 and renumbering the other SECTIONS of ARTICLE 1 accordingly:
SECTION 1.__. Section 53.02, Education Code, is amended by adding Subdivision (14) to read as follows:
(14) "Borrower" means any of the following entities that is the recipient of a loan made under Section 53.34:
(A) an institution of higher education;
(B) a nonprofit corporation:
(i) incorporated by and under the exclusive control of an institution of higher education; or
(ii) incorporated and operating for the exclusive benefit of an institution of higher education and authorized by the governing board of the institution to enter into a transaction as a borrower under this chapter;
(C) an accredited primary or secondary school; or
(D) an authorized charter school.
SECTION 1.__. Section 53.33, Education Code, is amended to read as follows:
Sec. 53.33. LIMITED 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) the facility is or will be located within the corporate limits of the city that created the authority or nonprofit instrumentality;
(2) the 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) the institution of higher education officially agrees to accept, and has the 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) the ownership of the facility by the authority or the nonprofit instrumentality is approved by official action of the governing body of:
(A) the city that created the authority or nonprofit instrumentality;
(B) the school district in which the facility is or will be located; and
(C) the county in which the facility is or will be located.
(b) An 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.
Friday, May 30, 2003 SENATE JOURNAL 3869
(c) The 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].
SECTION 1.__. Section 53.34, Education Code, is amended to read as follows:
Sec. 53.34. REVENUE 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) the 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) the 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) under 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) In 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) Bonds or other obligations issued under Subsection (a) [(b) The 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) A 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.
3870 78th Legislature — Regular Session 82nd Day
(e) An 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) Bonds 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) The 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.
SECTION 1.__. Subsection (b), Section 53.35, Education Code, is amended to read as follows:
(b) In 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
Statutes), Sections 53.131, 53.14, 53.15, 53.31, 53.32, 53.331, 53.34, 53.35, 53.38,
and 53.41 of this code[, Texas Education Code, shall] apply to and govern such
corporation and its procedures, [and] bonds, and other obligations.
Friday, May 30, 2003 SENATE JOURNAL 3871
SECTION 1.__. Section 53.48, Education Code, is amended to read as follows:
Sec. 53.48. BONDS 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.
Floor Amendment No. 4
Amend CSSB 1652 by adding the following appropriately numbered SECTIONS to the bill and by renumbering existing SECTIONS of the bill accordingly:
SECTION _____. Section 55.1732(a), Education Code, is amended to read as follows:
(a) In addition to the other authority granted by this subchapter, the board of regents of The University of Texas 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) The University of Texas at Arlington, $16,635,945 to construct a science building;
(2) The University of Texas at Brownsville, $26,010,000 to construct a life and health science and education facility (Phase II) and to procure and install permanent equipment and other fixtures in the facility;
(3) The University of Texas at Dallas, $21,993,750 to renovate Founders Hall, Founders Annex, and Berkner Hall;
(4) The University of Texas at El Paso, $12,750,000 to construct a biomedical and health sciences research center;
(5) The University of Texas–Pan American, $29,950,000 for education complex, library, and multipurpose center renovation and construction;
(6) The University of Texas of the Permian Basin, $5,610,000 for integrated Mesa Building renovations and gymnasium renovations;
(7) The University of Texas at San Antonio, $22,950,000 to construct a science building on the main campus;
(8) The University of Texas at Tyler, $20,910,000 to construct an engineering, sciences, and technology building and make other physical plant improvements;
(9) The University of Texas Southwestern Medical Center at Dallas, $40 million for North Campus phase IV construction;
(10) The University of Texas Medical Branch at Galveston, $20 million to renovate and expand research facilities;
(11) The University of Texas Health Science Center at Houston, $19,550,000 to construct or purchase a classroom building;
(12) The University of Texas Health Science Center at San Antonio, $28.9 million to construct a facility for student services and academic administration and to construct and develop a facility at the Laredo Extension Campus for educational and administrative purposes;
3872 78th Legislature — Regular Session 82nd Day
(13) the Regional Academic Health Center established under Section 74.611, $25.5 million to construct a teaching and learning laboratory in or near the city of Harlingen;
(14) The University of Texas Health Center at Tyler, $11,513,250 to construct a biomedical research center addition; and
(15) The University of Texas M. D. Anderson Cancer Center, $20 million to construct a basic sciences research building.
SECTION _____. Subchapter B, Chapter 55, Education Code, is amended by adding Section 55.17421 to read as follows:
Sec. 55.17421. THE UNIVERSITY OF TEXAS SYSTEM; ADDITIONAL REVENUE BONDS. (a) In addition to the other authority granted by this subchapter, the board of regents of The University of Texas System may acquire, purchase, construct, improve, renovate, enlarge, or equip property, buildings, structures, facilities, roads, or related infrastructure for The University of Texas Health Science Center at Houston for the replacement of research and academic facilities lost in Tropical Storm Allison, to be financed by the issuance of bonds in accordance with this subchapter, including bonds issued in accordance with its systemwide revenue financing program and secured as provided by that program, in aggregate principal amounts not to exceed $30 million.
(b) The board may pledge irrevocably to the payment of the bonds authorized by Subsection (a) all or any part of the revenue funds of an institution, branch, or entity of The University of Texas System, including student tuition charges required or authorized by law to be imposed on students enrolled at an institution, branch, or entity of The University of Texas System. The amount of a pledge made under this subsection may not be reduced or abrogated while the bonds for which the pledge is made, or bonds issued to refund those bonds, are outstanding.
(c) If sufficient funds are not available to the board to meet its obligations under this section, the board may transfer funds among institutions, branches, and entities of The University of Texas System to ensure the most equitable and efficient allocation of available resources for each institution, branch, or entity to carry out its constitutional and statutory duties and purposes.
SECTION _____. Section 61.0572(e), Education Code, is amended to read as follows:
(e) Approval of the board is not required to acquire real property that is financed
by bonds issued under Section 55.17(e)(3) or (4) or Sections 55.1713-55.17421[,
55.1713-55.1718, 55.1721-55.1728, or 55.174], except that the board shall review all
real property to be financed by bonds issued under those sections to determine
whether the property meets the standards adopted by the board for cost, efficiency,
and space use. If the property does not meet those standards, the board shall notify
the governor, the lieutenant governor, the speaker of the house of representatives, and
the Legislative Budget Board.
SECTION _____. Section 61.058(b), Education Code, is amended to read as follows:
(b) This section does not apply to construction, repair, or rehabilitation financed
by bonds issued under Section 55.17(e)(3) or (4) or Sections 55.1713-55.17421[,
55.1713-55.1718, 55.1721-55.1728, or 55.174], except that the board shall review all
Friday, May 30, 2003 SENATE JOURNAL 3873
Floor Amendment No. 5
Amend CSSB 1652 (House committee printing) by adding the following appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS of the bill accordingly:
SECTION _____. Subchapter D, Chapter 85, Education Code, is amended by adding Section 85.511 to read as follows:
Sec. 85.511. STUDY REGARDING MAXIMIZATION OF USE OF FIELD. (a) In this section, "bureau" means the Bureau of Economic Geology of The University of Texas at Austin.
(b) The bureau shall conduct a study of the East Texas Oil Field for the purpose of making comprehensive recommendations regarding measures that should be taken to maximize the ultimate recovery of oil and gas from the field.
(c) The bureau shall make a report on or before January 1, 2005, to the governor, lieutenant governor, and speaker of the house of representatives containing comprehensive recommendations regarding measures that should be taken to maximize the ultimate recovery of oil and gas from the East Texas Oil Field.
(d) This section expires September 1, 2005.
Floor Amendment No. 6
Amend CSSB 1652 in ARTICLE 1 by adding the following appropriately numbered SECTION and renumbering the other SECTIONS of ARTICLE 1 accordingly:
SECTION 1.__. Subchapter Z, Chapter 51, Education Code, is amended by adding Section 51.9461 to read as follows:
Sec. 51.9461. CHARGES AND FEES FOR CERTAIN PAYMENTS TO PRIVATE INSTITUTIONS OF HIGHER EDUCATION. A private or independent institution of higher education, as defined by Section 61.003, may charge any fee or other amount in connection with a payment to the institution that a public institution of higher education may charge under Section 54.5011. The amount of the fee or other charge may not exceed the maximum amount that a public institution of higher education may charge under Section 54.5011 for the same type of fee or charge.
Floor Amendment No. 7
Amend CSSB 1652, in ARTICLE 4 of that bill, by adding the following appropriately numbered SECTIONS and renumbering the SECTIONS in that ARTICLE appropriately:
SECTION _____. Section 1954.254, Occupations Code, is amended to read as follows:
3874 78th Legislature — Regular Session 82nd Day
Sec. 1954.254. CONFLICT OF INTEREST FOR CERTAIN LICENSE HOLDERS. A person licensed under this chapter to perform asbestos inspections or surveys, write management plans, or design abatement specifications for an asbestos abatement project may also engage in the removal of asbestos from the building or facility at which an asbestos abatement project takes place only if the person is retained to remove the asbestos by a municipality, university, school district, or other governmental entity.
SECTION _____. Section 1954.255(b), Occupations Code, is amended to read as follows:
(b) An independent third-party monitor may not be employed by the asbestos abatement contractor to analyze an area sample collected during the abatement project, but the monitor may collect such a sample if:
(1) the monitor is employed by a university, school district, or other governmental entity; and
(2) the analysis of the sample is performed by an analyst not employed by the contractor.
Floor Amendment No. 8
Amend CSSB 1652 (House committee report) by adding the following appropriately numbered SECTION to ARTICLE 4 of the bill and renumbering the other SECTIONS of ARTICLE 4 of the bill appropriately:
SECTION _____. Subchapter G, Chapter 61, Education Code, is amended by adding Section 61.3035 to read as follows:
Sec. 61.3035. EXEMPTION FOR CERTAIN SEMINARIES. Notwithstanding this chapter or any other law, a nonprofit corporation may operate a seminary or similar institution and confer or offer to confer degrees or credits toward degrees for a "master of divinity," "master of ministry," "doctor of ministry," or other similar exclusively religious degrees if:
(1) the seminary or other institution:
(A) is affiliated with an association of churches, synagogues, or other similar religious organizations; and
(B) operates at least:
(i) one campus located in a county with a population greater than three million;
(ii) one campus located in a county with a population of 250,000 or more and less than 500,000; or
(iii) one campus located in a county with a population of less than 250,000;
(2) each campus of the seminary or other institution is contained in a building owned by a religious organization; and
(3) each building in which the seminary or other institution operates contains, or is adjacent to, a religious organization's principal place of worship.
Floor Amendment No. 11
Amend CSSB 1652 by adding the following appropriately numbered ARTICLE and renumbering the other ARTICLES accordingly:
Friday, May 30, 2003 SENATE JOURNAL 3875
ARTICLE ____. STUDY OF ORGANIZATION, OPERATIONS, AND
FUNDING OF HIGHER EDUCATION
SECTION __.01. The legislature finds that:
(1) it is vital to the economy of this state that all areas of the state have access to quality higher education;
(2) it is in the interest of all residents of this state that an efficient and sufficiently funded higher education infrastructure exist that affords residents opportunities to become educated and productive members of the state's economy; and
(3) the Texas Higher Education Coordinating Board's report on closing the gaps provides an appropriate starting point for constructing a plan for meeting the state's current and future higher education needs.
SECTION __.02. (a) An interim committee is established to study the organization, operations, and funding of higher education. The interim committee is composed of:
(1) eight members of the house of representatives appointed by the speaker of the house;
(2) six members of the senate appointed by the lieutenant governor; and
(3) four public members appointed by the governor.
(b) The membership of the committee must be representative of all geographic areas of the state.
(c) The committee shall be co-chaired by the chairs of the standing committee of each house of the legislature with primary jurisdiction over higher education.
(d) The committee shall:
(1) study the structure and organization of higher education in this state, including the administration and operations of public and independent institutions of higher education; and
(2) study the equity and adequacy of higher education funding and its relationship to the purposes of higher education, including providing opportunities to students to achieve their educational goals, furthering knowledge through research, and providing direct services as local, regional, and state engines of economic development.
(e) In its review, the committee shall examine the effects of student and community characteristics on the costs of higher education, including the income and education levels of the families of students, unemployment rates, population growth, and other uncontrollable factors.
(f) In its review, the committee shall identity the number and types of classified and unclassified positions in the administration of each university system and examine each major function, service, or activity performed by university system offices, including:
(1) central administration;
(2) academic affairs coordination and support;
(3) general counsel and other legal services;
(4) budgeting, accounting, and data reporting;
(5) fiscal management;
(6) facilities planning and construction;
3876 78th Legislature — Regular Session 82nd Day
(7) governmental relations;
(8) audit services;
(9) real estate management;
(10) information technology services; and
(11) aircraft operation and usage.
(g) In its recommendations, the committee shall identify opportunities for legislative and administrative action relating to:
(1) changes in the organization and operations of institutions of higher education that will improve opportunities for residents of all areas of the state to enroll in and complete programs of higher education;
(2) changes in the funding of institutions of higher education and university systems to maximize the state's limited resources to meet the higher education needs of the state, including incentives for sharing arrangements to improve productivity;
(3) accountability measures and performance incentives for institutions of higher education and university systems that are aligned with the purposes of higher education and that are sensitive to mission differentiation among institutions of higher education;
(4) the consolidation or reorganization of university system office functions and services, including the consolidation or reorganization of university systems to promote efficiency and productivity; and
(5) potential reductions in personnel and other cost savings associated with the committee's recommendations.
(h) The committee's recommendations under Subsection (g) must include a plan for deregulating seminaries and similar institutions offering exclusively religious education or training. The plan must permit those institutions to confer or offer to confer religious degrees without accreditation and may include disclosure requirements and other appropriate safeguards to address potential fraud or deception. The requirements or safeguards may not authorize the state or a political subdivision of the state to assert regulatory authority over religious degree programs offered by those institutions.
(i) Not later than November 1, 2004, the committee shall prepare a report describing its findings and recommendations and deliver the report to the governor, lieutenant governor, speaker of the house of representatives, Legislative Budget Board, and members of the standing committee of each house of the legislature with primary jurisdiction over higher education.
(j) The committee is abolished and this section expires September 1, 2005.
Floor Amendment No. 12
Amend CSSB 1652 by adding the following appropriately numbered ARTICLE and by renumbering existing ARTICLES accordingly:
ARTICLE ____. ESTABLISHMENT OF RIO GRANDE
STATE UNIVERSITY
SECTION ____. Section 96.01, Education Code, is amended to read as follows:
Sec. 96.01. SUL ROSS STATE UNIVERSITY. Sul Ross State University is a
coeducational institution of higher education located in the city of Alpine[, with an
upper-level educational center known as Sul Ross State University Rio Grande
Friday, May 30, 2003 SENATE JOURNAL 3877
SECTION ____. Chapter 96, Education Code, is amended by adding Subchapter A-1 to read as follows:
SUBCHAPTER A-1. RIO GRANDE STATE UNIVERSITY
Sec. 96.11. RIO GRANDE STATE UNIVERSITY. Rio Grande State University is a coeducational institution of higher education located in the cities of Del Rio, Eagle Pass, and Uvalde. The university is under the management and control of the Board of Regents of the Texas State University System.
Sec. 96.12. IMPLEMENTATION OF UNIVERSITY. The board of regents shall establish the university as soon as practicable.
(b) The property, facilities, faculty, and staff of Sul Ross State University Rio Grande College are transferred to Rio Grande State University on the date prescribed by the board of regents for the initial operation of the university.
SECTION ____. Section 96.02, Education Code, is repealed.
Floor Amendment No. 13
Amend CSSBi1652 by adding a new section to the bill, numbered appropriately, to read as follows and renumbering the existing sections of the bill accordingly:
SECTIONi____.ii(a) Section 51.214, Education Code, is amended to read as follows:
Sec.i51.214.iiSECURITY OFFICERS FOR MEDICAL CORPORATIONS IN
CERTAIN MUNICIPALITIES. (a)iiIn any municipality with a population of 1.18
million or more, the governing board of a private, nonprofit medical corporation that
provides security services for an institution of higher education or a private
postsecondary educational institution and other entities located within the same
medical complex, or that provides security services for a branch of that medical
corporation [complex], may employ and commission security personnel to enforce the
law of this state within the jurisdiction designated by Subsection (c) [at the medical
complex and its branches].
(b)iiAn officer commissioned under this section may make arrests and has all the
powers, privileges, and immunities of a peace officer while [on the property under the
control and jurisdiction of the medical corporation or while otherwise] performing the
officer's [his] assigned duties within the jurisdiction designated by Subsection (c). An
officer assigned to duty and commissioned shall take and file the oath required of
peace officers and shall execute and file a good and sufficient bond in the sum of
$1,000, payable to the governor, with two or more good and sufficient sureties,
conditioned that the officer [he] will fairly, impartially, and faithfully perform the
duties required of the officer [him] by law. The bond may be sued on from time to
time in the name of the person injured until the whole amount is recovered.
(c)iiThe jurisdiction of an officer commissioned under this section is limited to:
(1)iiproperty owned, leased, managed, or controlled by the medical corporation; and
(2)iia street or alley that abuts the property or an easement in or a right-of-way over or through the property.
3878 78th Legislature — Regular Session 82nd Day
(d)iiAn officer commissioned by a medical corporation under this section is not entitled to compensation or benefits provided by this state or a political subdivision of this state.
(e)iiThe state or a political subdivision of this state is not liable for an act or omission of an officer commissioned under this section during the performance of the officer's assigned duties.
(f)iiA medical corporation may not commission a person under this section unless the person obtains a peace officer license issued by the Commission on Law Enforcement Officer Standards and Education. The medical corporation shall pay to the Commission on Law Enforcement Officer Standards and Education on behalf of an employee any fees that are necessary to obtain a required license.
(g)iiA person's commission and any authority to act as an officer under this section are automatically revoked if the person's employment with a medical corporation is terminated for any reason.
(b)iiThis section takes effect Septemberi1, 2003.
(c)iiA person commissioned before the effective date of this section by a private nonprofit medical corporation under Section 51.214, Education Code, must obtain a peace officer license issued by the Commission on Law Enforcement Officer Standards and Education not later than Septemberi1, 2004. If that person does not obtain the license by that date, the person's commission and any authority to act as an officer under Section 51.214, Education Code, as amended by this section, are automatically revoked.
Floor Amendment No. 14
Amend CSSB 1652 (House committee report) by adding the following appropriately numbered ARTICLE to the bill and renumbering the other ARTICLES of the bill appropriately:
ARTICLE ____. PROTECTION FROM ACTS OF VIOLENCE BY
STUDENTS AND EMPLOYEES
Section __.01. Subchapter Z, Chapter 51, Education Code, is amended by adding Section 51.9365 to read as follows:
Sec. 51.9365. PROTECTION FROM ACTS OF VIOLENCE BY STUDENTS AND EMPLOYEES. (a) The president or other chief executive officer of an institution of higher education, as defined by Section 61.003, shall provide for the identification of a student or employee who constitutes a substantial threat to human life on the campus or other facility of the institution.
(b) A student or employee who is determined to be a substantial threat to another student or employee under this section may be removed from the campus or facility.
(c) An institution of higher education shall establish procedures under this section for:
(1) the filing of complaints or reports by students and employees of persons who may constitute a substantial threat to human life; and
(2) the removal of a student or employee from the campus or facility.
(d) The procedures established under this section shall ensure due process rights for all persons under applicable state and federal law, and, as appropriate, ensure adequate confidentiality of records.
Friday, May 30, 2003 SENATE JOURNAL 3879
Floor Amendment No. 1 on Third Reading
Amend CSSB 1652 on third reading by adding the following appropriately numbered SECTIONS to ARTICLE 1 of the bill and renumber the other SECTIONS accordingly:
SECTION 1.__. Subchapter D, Chapter 54, Education Code, is amended by adding Section 54.2111 to read as follows:
Sec. 54.2111. EXEMPTIONS FOR ADOPTED STUDENTS FORMERLY IN FOSTER OR OTHER RESIDENTIAL CARE. A student is exempt from the payment of tuition and fees authorized by this chapter if the student was:
(1) adopted; and
(2) the subject of an adoption assistance agreement under Subchapter D, Chapter 162, Family Code.
SECTION 1.__. Section 54.2111, Education Code, as added by this Act, applies beginning with tuition and fees charged for the 2003 fall semester. Tuition and fees charged for a semester or session before the 2003 fall semester are governed by the applicable law in effect before the effective date of this Act, and that law is continued in effect for that purpose.
Floor Amendment No. 2 on Third Reading
Amend CSSB 1652 on third reading by adding the following appropriately numbered article to the bill:
ARTICLE ____. INTERCOLLEGIATE ATHLETICS FEE AT
PRAIRIE VIEW A&M UNIVERSITY
SECTION __.01. Subchapter E, Chapter 54, Education Code, is amended by adding Section 54.5393 to read as follows:
Sec. 54.5393. INTERCOLLEGIATE ATHLETICS FEE: PRAIRIE VIEW A&M UNIVERSITY. (a) The board of regents of The Texas A&M University System may impose an intercollegiate athletics fee on each student enrolled at Prairie View A&M University in an amount not to exceed $10 per semester credit hour.
(b) The amount of the fee imposed on a student in a semester or session may not exceed the amount of the fee imposed on a student enrolled in 15 semester credit hours during the same semester or session.
(c) The fee may not be imposed unless approved by a majority vote of the students of the university participating in a general student election held for that purpose.
(d) A fee imposed under this section shall be used to develop and maintain an intercollegiate athletics program at the university.
(f) A fee imposed under this section is in addition to any other fee authorized by law and may not be considered in determining the maximum amount of student services fees that may be imposed under Section 54.503.
(g) This section expires September 1, 2013.
SECTION __.02. This article applies beginning with the 2003 fall semester.
3880 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 3 on Third Reading
Amend CSSB 1652, on third reading, by adding the following appropriately numbered ARTICLE to the bill and renumbering existing ARTICLES of the bill accordingly:
ARTICLE ____. UNIVERSITY OF NORTH TEXAS AT DALLAS
SECTION __.01. Section 105.451(d), Education Code, is amended to read as follows:
(d) Notwithstanding any other provision of this subchapter, the University of
North Texas at Dallas may operate as a general academic teaching institution with its
own chief executive officer, administration, and faculty only after the Texas Higher
Education Coordinating Board certifies that enrollment at the University of North
Texas System Center at Dallas has reached an enrollment equivalent to 935 [2,500]
full-time students for one semester. Until that enrollment level is reached, the board
may operate a system center of the University of North Texas in the city of Dallas.
The amendments were read.
Senator Shapiro moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1652 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Shapiro, Chair; Averitt, Janek, Ogden, and West.
SENATE BILL 871 WITH HOUSE AMENDMENTS
Senator Shapiro called SBi871 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 871 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the sex offender registration program and to requirements imposed on certain persons under the program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiArticle 62.01, Code of Criminal Procedure, is amended by adding Subdivisions (8) and (9) to read as follows:
(8)ii"Public or private institution of higher education" includes a college, university, community college, or technical or trade institute.
Friday, May 30, 2003 SENATE JOURNAL 3881
(9)ii"Authority for campus security" means the authority with primary law enforcement jurisdiction over property under the control of a public or private institution of higher education, other than a local law enforcement authority.
SECTIONi2.iiChapter 62, Code of Criminal Procedure, is amended by adding Article 62.0102 to read as follows:
Art.i62.0102.iiDETERMINATION REGARDING PRIMARY REGISTRATION AUTHORITY. (a) For each person subject to registration under this chapter, the department shall determine which local law enforcement authority serves as the person's primary registration authority based on the municipality or county in which the person resides or, as provided by Article 62.061, as added by Chapters 1193 and 1415, Acts of the 76th Legislature, Regular Session, 1999, the municipality or county in which the person works or attends school.
(b)iiThe department shall notify each person subject to registration under this chapter of the person's primary registration authority in a timely manner.
SECTIONi3.iiArticle 62.011, Code of Criminal Procedure, is amended to read as follows:
Art.i62.011.iiWORKERS OR STUDENTS. (a) A person is employed or carries
on a vocation for purposes of this chapter if the person works or volunteers on a
full-time or part-time basis for a consecutive period exceeding 14 days or for an
aggregate period exceeding 30 days in a calendar year. A person works for purposes
of this subsection regardless of[,] whether the person works for compensation or for
governmental or educational benefit.
(b)iiA person is a student for purposes of this chapter if the person enrolls on a full-time or part-time basis in any educational facility, including:
(1)iia public or private primary or secondary school, including a high school or alternative learning center; or
(2)iia public or private institution of higher education[, including a college,
university, community college, or technical or trade institute].
SECTIONi4.iiSubsections (b) and (g), Article 62.02, Code of Criminal Procedure, are amended to read as follows:
(b)iiThe department shall provide the Texas Department of Criminal Justice, the Texas Youth Commission, the Texas Juvenile Probation Commission, and each local law enforcement authority, authority for campus security, county jail, and court with a form for registering persons required by this chapter to register. The registration form shall require:
(1)iithe person's full name, each alias, date of birth, sex, race, height, weight, eye color, hair color, social security number, driver's license number, shoe size, and home address;
(2)iia recent color photograph or, if possible, an electronic digital image of the person and a complete set of the person's fingerprints;
(3)iithe type of offense the person was convicted of, the age of the victim, the date of conviction, and the punishment received;
(4)iian indication as to whether the person is discharged, paroled, or released on juvenile probation, community supervision, or mandatory supervision;
(5)iian indication of each license, as defined by Article 62.08(f), that is held
or sought by the person; [and]
3882 78th Legislature — Regular Session 82nd Day
(6)iian indication as to whether the person is or will be employed, carrying on a vocation, or a student at a particular public or private institution of higher education in this state or another state, and the name and address of that institution; and
(7)iiany other information required by the department.
(g)iiIf the other state has a registration requirement for sex offenders, a person who has a reportable conviction or adjudication, who resides in this state, and who is employed, carries on a vocation, or is a student in another state shall, not later than the 10th day after the date on which the person begins to work or attend school in the other state, register with the law enforcement authority that is identified by the department as the authority designated by that state to receive registration information. If the person is employed, carries on a vocation, or is a student at a public or private institution of higher education in the other state and if an authority for campus security exists at the institution, the person shall also register with that authority not later than the 10th day after the date on which the person begins to work or attend school.
SECTIONi5.iiSubsections (a), (e), and (h), Article 62.03, Code of Criminal Procedure, are amended to read as follows:
(a)iiBefore a person who will be subject to registration under this chapter is due to be released from a penal institution, the Texas Department of Criminal Justice or the Texas Youth Commission shall determine the person's level of risk to the community using the sex offender screening tool developed or selected under Article 62.035 and assign to the person a numeric risk level of one, two, or three. Before releasing the person, an official of the penal institution shall:
(1)iiinform the person that:
(A)iinot later than the seventh day after the date on which the person is released or the date on which the person moves from a previous residence to a new residence in this state, the person must:
(i)iiregister or verify registration with the local law enforcement authority in the municipality or county in which the person intends to reside; or
(ii)iiif the person has not moved to an intended residence, report to the juvenile probation officer, community supervision and corrections department officer, or parole officer supervising the person;
(B)iinot later than the seventh day before the date on which the person
moves to a new residence in this state or another state, the person must report in
person to the local law enforcement authority designated as the person's primary
registration authority by the department [with whom the person last registered] and to
the juvenile probation officer, community supervision and corrections department
officer, or parole officer supervising the person;
(C)iinot later than the 10th day after the date on which the person arrives
in another state in which the person intends to reside, the person must register with the
law enforcement agency that is identified by the department as the agency designated
by that state to receive registration information, if the other state has a registration
requirement for sex offenders; [and]
Friday, May 30, 2003 SENATE JOURNAL 3883
(D)iinot later than the 30th day after the date on which the person is released, the person must apply to the department in person for the issuance of an original or renewal driver's license or personal identification certificate and a failure to apply to the department as required by this paragraph results in the automatic revocation of any driver's license or personal identification certificate issued by the department to the person; and
(E)iithe person must notify appropriate entities of any change in status as described by Article 62.05;
(2)iirequire the person to sign a written statement that the person was informed of the person's duties as described by Subdivision (1) or Subsection (h) or, if the person refuses to sign the statement, certify that the person was so informed;
(3)iiobtain the address where the person expects to reside on the person's release and other registration information, including a photograph and complete set of fingerprints; and
(4)iicomplete the registration form for the person.
(e)iiNot later than the eighth day after receiving a registration form under
Subsection (b), (c), or (d), the local law enforcement authority shall verify the age of
the victim, [the age of the person subject to registration,] the basis on which the
person is subject to registration under this chapter, and the person's numeric risk level.
The [If the victim is a child younger than 17 years of age and the basis on which the
person is subject to registration is not an adjudication of delinquent conduct and is not
a conviction or a deferred adjudication for an offense under Section 25.02, Penal
Code, the] authority shall immediately publish notice in English and Spanish in the
newspaper of greatest paid circulation in the county in which the person subject to
registration intends to reside or, if there is no newspaper of paid circulation in that
county, in the newspaper of greatest general circulation in the county, except as
provided by Article 62.031. If the authority publishes notice under this subsection,
the [The] authority shall publish a duplicate notice in the newspaper, with any
necessary corrections, during the week immediately following the week of initial
publication. The local law enforcement [If the victim is a child younger than 17 years
of age or the person subject to registration is 17 years of age or older and a student
enrolled in a public or private secondary school, regardless of the basis on which the
person is subject to registration, the] authority shall also immediately provide notice to
the superintendent of the public school district and to the administrator of any private
primary or secondary school located in the public school district in which the person
subject to registration intends to reside by mail to the office of the superintendent or
administrator, as appropriate, in accordance with Article 62.032. On receipt of a notice
under this subsection, the superintendent shall release the information contained in the
notice to appropriate school district personnel, including peace officers and security
personnel, principals, nurses, and counselors.
(h)iiBefore a person who will be subject to registration under this chapter is due to be released from a penal institution in this state, an official of the penal institution shall inform the person that:
3884 78th Legislature — Regular Session 82nd Day
(1)iiif the person intends to reside in another state and to work or attend
school in this state, the person must, not later than the seventh day after the date on
which the person begins to work or attend school, register or verify registration with
the local law enforcement authority in the municipality or county in which the person
intends to work or attend school; [and]
(2)iiif the person intends to reside in this state and to work or attend school in another state and if the other state has a registration requirement for sex offenders, the person must:
(A)ii[,] not later than the 10th day after the date on which the person
begins to work or attend school in the other state, register with the law enforcement
authority that is identified by the department as the authority designated by that state
to receive registration information; and
(B)iiif the person intends to be employed, carry on a vocation, or be a student at a public or private institution of higher education in the other state and if an authority for campus security exists at the institution, register with that authority not later than the 10th day after the date on which the person begins to work or attend school; and
(3)iiregardless of the state in which the person intends to reside, if the person intends to be employed, carry on a vocation, or be a student at a public or private institution of higher education in this state, the person must:
(A)iinot later than the seventh day after the date on which the person begins to work or attend school, register with:
(i)iithe authority for campus security for that institution; or
(ii)iiexcept as provided by Article 62.064(e), if an authority for campus security for that institution does not exist, the local law enforcement authority of:
(a)iithe municipality in which the institution is located; or
(b)iithe county in which the institution is located, if the institution is not located in a municipality; and
(B)iinot later than the seventh day after the date the person stops working or attending school, notify the appropriate authority for campus security or local law enforcement authority of the termination of the person's status as a worker or student.
SECTIONi6.iiChapter 62, Code of Criminal Procedure, is amended by adding Articles 62.031 and 62.032 to read as follows:
Art.i62.031.iiLIMITATIONS ON NEWSPAPER PUBLICATION. (a) A local law enforcement authority may not publish notice in a newspaper under Article 62.03(e) or 62.04(f) if the basis on which the person is subject to registration is:
(1)iian adjudication of delinquent conduct; or
(2)iia conviction or a deferred adjudication for an offense under Section 25.02, Penal Code, or an offense under the laws of another state, federal law, or the Uniform Code of Military Justice that contains elements substantially similar to the elements of an offense under Section 25.02, Penal Code, if the victim was at the time of the offense a child younger than 17 years of age.
Friday, May 30, 2003 SENATE JOURNAL 3885
(b)iiIn addition to the prohibition on publication established under Subsection (a), a local law enforcement authority may not publish notice in a newspaper under Article 62.04(f) if the person subject to registration is assigned a numeric risk level of one.
Art.i62.032.iiCIRCUMSTANCES REQUIRING NOTICE TO SUPERINTENDENT OR SCHOOL ADMINISTRATOR. (a) A local law enforcement authority shall provide notice to the superintendent and each administrator under Article 62.03(e) or 62.04(f) only if:
(1)iithe victim was at the time of the offense a child younger than 17 years of age or a student enrolled in a public or private secondary school;
(2)iithe person subject to registration is a student enrolled in a public or private secondary school; or
(3)iithe basis on which the person is subject to registration is a conviction, a deferred adjudication, or an adjudication of delinquent conduct for an offense under Section 43.25 or 43.26, Penal Code, or an offense under the laws of another state, federal law, or the Uniform Code of Military Justice that contains elements substantially similar to the elements of an offense under either of those sections.
(b)iiA local law enforcement authority may not provide notice to the superintendent or any administrator under Article 62.03(e) or 62.04(f) if the basis on which the person is subject to registration is a conviction, a deferred adjudication, or an adjudication of delinquent conduct for an offense under Section 25.02, Penal Code, or an offense under the laws of another state, federal law, or the Uniform Code of Military Justice that contains elements substantially similar to the elements of an offense under that section.
SECTIONi7.iiSubsections (a), (b), (e), and (f), Article 62.04, Code of Criminal Procedure, are amended to read as follows:
(a)iiIf a person required to register intends to change address, regardless of
whether the person intends to move to another state, the person shall, not later than the
seventh day before the intended change, report in person to the local law enforcement
authority designated as the person's primary registration authority by the department
[with whom the person last registered] and to the juvenile probation officer,
community supervision and corrections department officer, or parole officer
supervising the person and provide the authority and the officer with the person's
anticipated move date and new address. If a person required to register changes
address, the person shall, not later than the seventh day after changing the address,
report in person to the local law enforcement authority in the municipality or county
in which the person's new residence is located and provide the authority with proof of
identity and proof of residence.
(b)iiNot later than the third day after receipt of notice under Subsection (a), the
person's juvenile probation officer, community supervision and corrections
department officer, or parole officer shall forward the information provided under
Subsection (a) to the local law enforcement authority designated as the person's
primary registration authority by the department [with whom the person last
registered] and, if the person intends to move to another municipality or county in this
state, to the applicable local law enforcement authority in that municipality or county.
3886 78th Legislature — Regular Session 82nd Day
(e)iiIf a person who reports to a local law enforcement authority under Subsection (a) does not move on or before the anticipated move date or does not move to the new address provided to the authority, the person shall:
(1)iinot later than the seventh day after the anticipated move date, report to
the local law enforcement authority designated as the person's primary registration
authority by the department [with whom the person last registered not later than the
seventh day after the anticipated move date] and provide an explanation to the
authority regarding any changes in the anticipated move date and intended residence;
and
(2)iireport to the juvenile probation officer, community supervision and corrections department officer, or parole officer supervising the person not less than weekly during any period in which the person has not moved to an intended residence.
(f)iiIf the person moves to another municipality or county in this state, the
department shall inform the applicable local law enforcement authority in the new
area of the person's residence not later than the third day after the date on which the
department receives information under Subsection (a). Not later than the eighth day
after the date on which the local law enforcement authority is informed under
Subsection (a) or under this subsection, the authority shall verify the age of the victim,
[the age of the person subject to registration,] the basis on which the person is subject
to registration under this chapter, and the person's numeric risk level. The [If the
victim is a child younger than 17 years of age, the basis on which the person is subject
to registration is not an adjudication of delinquent conduct and is not a conviction or a
deferred adjudication for an offense under Section 25.02, Penal Code, and the person
is not assigned a numeric risk level of one, the] authority shall immediately publish
notice in English and Spanish in the newspaper of greatest paid circulation in the
county in which the person subject to registration intends to reside or, if there is no
newspaper of paid circulation in that county, in the newspaper of greatest general
circulation in the county, except as provided by Article 62.031. If the authority
publishes notice under this subsection, the [The local law enforcement] authority shall
publish a duplicate notice in the newspaper, with any necessary corrections, during the
week immediately following the week of initial publication. The local law
enforcement [If the victim is a child younger than 17 years of age or the person
subject to registration is 17 years of age or older and a student enrolled in a public or
private secondary school, regardless of the basis on which the person is subject to
registration or the person's numeric risk level, the] authority shall also immediately
provide notice to the superintendent of the public school district and to the
administrator of any private primary or secondary school located in the public school
district in which the person subject to registration intends to reside by mail to the
office of the superintendent or administrator, as appropriate, in accordance with
Article 62.032. On receipt of a notice under this subsection, the superintendent shall
release the information contained in the notice to appropriate school district personnel,
including peace officers and security personnel, principals, nurses, and counselors.
SECTIONi8.iiArticle 62.05, Code of Criminal Procedure, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3887
Art.i62.05.iiSTATUS REPORT BY SUPERVISING OFFICER OR LOCAL
LAW ENFORCEMENT AGENCY. (a)iiIf the juvenile probation officer, community
supervision and corrections department officer, or parole officer supervising a person
subject to registration under this chapter receives information to the effect that the
person's status has changed in any manner that affects proper supervision of the
person, including a change in the person's physical health, job or educational status,
higher educational status, incarceration, or terms of release, the supervising officer
shall promptly notify the appropriate local law enforcement authority or authorities of
that change. If the person required to register intends to change address, the [person's]
supervising officer shall notify the local law enforcement authorities designated by
Article 62.04(b). Not later than the seventh day after the date the supervising officer
receives the relevant information, the supervising officer shall notify the local law
enforcement authority of any change in the person's job or educational status in which
the person:
(1)iibecomes employed, begins to carry on a vocation, or becomes a student at a particular public or private institution of higher education; or
(2)iiterminates the person's status in that capacity.
(b)iiNot later than the seventh day after the date of the change, a [A] person
subject to registration under this chapter shall report to the local law enforcement
authority designated as the person's primary registration authority by the department
any change in the person's physical health or in the person's job or educational status,
including higher educational status [not later than the seventh day after the date of the
change]. For purposes of this subsection, a person's job status changes if the person
leaves employment for any reason, remains employed by an employer but changes the
location at which the person works, or begins employment with a new employer. For
purposes of this subsection, a person's health status changes if the person is
hospitalized as a result of an illness. For purposes of this subsection, a change in a
person's educational status includes the person's transfer from one educational facility
to another. Not later than the seventh day after the date the local law enforcement
authority receives the relevant information, the local law enforcement authority shall
notify the department of any change in the person's job or educational status in which
the person:
(1)iibecomes employed, begins to carry on a vocation, or becomes a student at a particular public or private institution of higher education; or
(2)iiterminates the person's status in that capacity.
SECTIONi9.iiSubsections (a), (b), and (d), Article 62.06, Code of Criminal Procedure, are amended to read as follows:
(a)iiA person subject to registration under this chapter who has for a sexually
violent offense been convicted two or more times, received an order of deferred
adjudication two or more times, or been convicted and received an order of deferred
adjudication shall report to the local law enforcement authority designated as the
person's primary registration authority by the department [with whom the person is
required to register] not less than once in each 90-day period following the date the
person first registered under this chapter to verify the information in the registration
form maintained by the authority for that person. A person subject to registration
under this chapter who is not subject to the 90-day reporting requirement described by
3888 78th Legislature — Regular Session 82nd Day
(b)iiA local law enforcement authority designated as a person's primary
registration authority by the department [with whom a person is required to register
under this chapter] may direct the person to report to the authority to verify the
information in the registration form maintained by the authority for that person. The
authority may direct the person to report under this subsection once in each 90-day
period following the date the person first registered under this chapter, if the person is
required to report not less than once in each 90-day period under Subsection (a) or
once in each year not earlier than the 30th day before and not later than the 30th day
after the anniversary of the person's date of birth, if the person is required to report
once each year under Subsection (a). A local law enforcement authority may not
direct a person to report to the authority under this subsection if the person is required
to report under Subsection (a) and is in compliance with the reporting requirements of
that subsection.
(d)iiA local law enforcement authority designated as a person's primary
registration authority by the department [with whom a person is required to register
under this chapter] may at any time mail a nonforwardable verification form to the last
reported address of the person. Not later than the 21st day after receipt of a
verification form under this subsection, the person shall:
(1)iiindicate on the form whether the person still resides at the last reported address and, if not, provide on the form the person's new address;
(2)iicomplete any other information required by the form;
(3)iisign the form; and
(4)iireturn the form to the authority.
SECTIONi10.iiSubsection (a), Article 62.061, Code of Criminal Procedure, as added by Chapter 444, Acts of the 76th Legislature, Regular Session, 1999, is amended to read as follows:
(a)iiNotwithstanding Article 62.06, if an individual subject to registration under
this chapter is civilly committed as a sexually violent predator, the person shall report
to the local law enforcement authority designated as the person's primary registration
authority by the department [with whom the person is required to register] not less
than once in each 30-day period following the date the person first registered under
this chapter to verify the information in the registration form maintained by the
authority for that person. For purposes of this subsection, a person complies with a
requirement that the person register within a 30-day period following a date if the
person registers at any time on or after the 27th day following that date but before the
33rd day after that date.
SECTIONi11.iiChapter 62, Code of Criminal Procedure, is amended by adding Article 62.064 to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3889
Art.i62.064.iiREGISTRATION OF WORKERS OR STUDENTS AT INSTITUTIONS OF HIGHER EDUCATION. (a) Not later than the seventh day after the date on which the person begins to work or attend school, a person required to register under Article 62.061, as added by Chapters 1193 and 1415, Acts of the 76th Legislature, Regular Session, 1999, or any other provision of this chapter who is employed, carries on a vocation, or is a student at a public or private institution of higher education in this state shall report that fact to:
(1)iithe authority for campus security for that institution; or
(2)iiif an authority for campus security for that institution does not exist, the local law enforcement authority of:
(A)iithe municipality in which the institution is located; or
(B)iithe county in which the institution is located, if the institution is not located in a municipality.
(b)iiA person described by Subsection (a) shall provide the authority for campus security or the local law enforcement authority with all information the person is required to provide under Article 62.02(b).
(c)iiA person described by Subsection (a) shall notify the authority for campus security or the local law enforcement authority not later than the seventh day after the date of termination of the person's status as a worker or student at the institution.
(d)iiThe authority for campus security or the local law enforcement authority shall promptly forward to the administrative office of the institution any information received from the person under this article and any information received from the department under Article 62.08.
(e)iiSubsection (a)(2) does not require a person to register at a local law enforcement authority if the person is otherwise required by this chapter to register at that authority.
(f)iiThis article does not impose the requirements of public notification or notification to public or private primary or secondary schools on:
(1)iian authority for campus security; or
(2)iia local law enforcement authority, if those requirements relate to a person about whom the authority is not otherwise required by this chapter to make notifications.
(g)iiNotwithstanding Article 62.062, the requirements of this article supersede those of Article 62.062 for a person required to register under both this article and Article 62.062.
(h)iiRegardless of the date on which the person began to work or attend school, a person described by Subsection (a) who is employed, carrying on a vocation, or is a student at a public or private institution of higher education in this state on Septemberi1, 2003, shall report that fact not later than October 1, 2003, to the appropriate authority as described by Subsection (a). This subsection expires September 1, 2004.
SECTIONi12.iiArticle 62.08, Code of Criminal Procedure, is amended by amending Subsection (b) and adding Subsections (h) and (i) to read as follows:
(b)iiThe information contained in the database is public information, with the exception of any information:
(1)iiregarding the person's social security number, driver's license number, or telephone number;
3890 78th Legislature — Regular Session 82nd Day
(2)iithat is required by the department under Article 62.02(b)(7)
[62.02(b)(6)]; or
(3)iithat would identify the victim of the offense for which the person is subject to registration.
(h)iiNot later than the third day after the date on which the applicable information becomes available through the person's registration or verification of registration or under Article 62.05, the department shall send notice of any person required to register under this chapter who is or will be employed, carrying on a vocation, or a student at a public or private institution of higher education in this state to:
(1)iifor an institution in this state:
(A)iithe authority for campus security for that institution; or
(B)iiif an authority for campus security for that institution does not exist, the local law enforcement authority of:
(i)iithe municipality in which the institution is located; or
(ii)iithe county in which the institution is located, if the institution is not located in a municipality; or
(2)iifor an institution in another state, any existing authority for campus security at that institution.
(i)iiOn the written request of an institution of higher education described by Subsection (h) that identifies an individual and states that the individual has applied to work or study at the institution, the department shall release any information described by Subsection (a) to the institution.
SECTIONi13.iiSubsections (a) and (d), Article 62.09, Code of Criminal Procedure, are amended to read as follows:
(a)iiThe department, a penal institution, [or] a local law enforcement authority, or
an authority for campus security may release to the public information regarding a
person required to register only if the information is public information under this
chapter.
(d)iiA private primary or secondary school, public or private institution of higher
education, or administrator of a private primary or secondary school or public or
private institution of higher education may release to the public information regarding
a person required to register only if the information is public information under this
chapter and is released to the administrator under Article 62.03, [or] 62.04, 62.064, or
62.08. A private primary or secondary school, public or private institution of higher
education, or administrator of a private primary or secondary school or public or
private institution of higher education is not liable under any law for damages arising
from conduct authorized by this subsection.
SECTIONi14.iiSubsection (a), Article 62.12, Code of Criminal Procedure, as amended by Chapters 211 and 1297, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:
(a)iiThe duty to register for a person ends when the person dies if the person has a reportable conviction or adjudication, other than an adjudication of delinquent conduct, for:
(1)iia sexually violent offense;
(2)iian offense under Section 25.02, 43.05(a)(2), or 43.26, Penal Code;
Friday, May 30, 2003 SENATE JOURNAL 3891
(3)iian offense under Section 21.11(a)(2), Penal Code, if before or after the person is convicted or adjudicated for the offense under Section 21.11(a)(2), Penal Code, the person receives or has received another reportable conviction or adjudication, other than an adjudication of delinquent conduct, for an offense or conduct that requires registration under this chapter; or
(4)iian offense under Section 20.02, 20.03, or 20.04, Penal Code, or an attempt, conspiracy, or solicitation to commit one of those offenses, if:
(A)iithe judgment in the case contains an affirmative finding under
Article 42.015[, as added by Chapter 1193, Acts of the 76th Legislature, Regular
Session, 1999,] or, for a deferred adjudication, the papers in the case contain an
affirmative finding that the victim or intended victim was younger than 17 years of
age; and
(B)iibefore or after the person is convicted or adjudicated for the offense under Section 20.02, 20.03, or 20.04, Penal Code, the person receives or has received another reportable conviction or adjudication, other than an adjudication of delinquent conduct, for an offense or conduct that requires registration under this chapter.
SECTIONi15.iiArticle 62.13, Code of Criminal Procedure, is amended by amending Subsections (k), (o), (q), and (r) and adding Subsection (q-1) to read as follows:
(k)iiAfter a hearing under Subsection (b) or under a plea agreement under Subsection (f), the juvenile court may enter an order requiring the respondent to register as a sex offender but provide that the registration information is not public information and is restricted to use by law enforcement and criminal justice agencies and public or private institutions of higher education. Information obtained under this subsection may not be posted on the Internet or released to the public.
(o)iiTo the extent feasible, the motion under Subsection (l) shall identify those public and private agencies and organizations, including public or private institutions of higher education, that possess sex offender registration information about the case.
(q)iiIf the court grants the motion, a copy of the court's order shall be sent to:
(1)iieach public or [and] private agency or organization that the court
determines may be in possession of sex offender registration information pertaining to
the person required to register under this chapter; and
(2)iiat the request of the person required to register under this chapter, each public or private agency or organization that at any time following the initial dissemination of the order under Subdivision (1) gains possession of sex offender registration information pertaining to that person, if the agency or organization did not otherwise receive a copy of the order under Subdivision (1).
(q-1)iiAn [The] order under Subsection (q) shall require the recipient to conform
its records to the court's orders either by deleting the sex offender registration
information or changing its status to nonpublic, as the order requires. A public or
private institution of higher education may not be required to delete the sex offender
registration information under this subsection.
(r)iiA private agency or organization that possesses sex offender registration
information it obtained from a state, county, or local governmental entity is required to
conform its records to the court's order on or before the 30th day after the date of its
entry. Failure to comply in that period automatically bars an [the] agency or
3892 78th Legislature — Regular Session 82nd Day
SECTIONi16.ii(a) The Department of Public Safety of the State of Texas shall establish the procedures required by Subsections (h) and (i), Article 62.08, Code of Criminal Procedure, as added by this Act, not later than October 1, 2003.
(b)iiThe change in law made by this Act applies to a person subject to registration under Chapter 62, Code of Criminal Procedure, for an offense or conduct that was committed before, on, or after the effective date of this Act.
SECTIONi17.iiThis Act takes effect September 1, 2003.
Floor Amendment No. 1
Amend CSSBi871 (House committee report) by adding the following appropriately numbered SECTIONS to the bill and by renumbering existing SECTIONS of the bill accordingly:
SECTIONi____.iiSubdivision (4), Section 841.002, Health and Safety Code, is amended to read as follows:
(4)ii"Council" means the [Interagency] Council on Sex Offender Treatment.
SECTIONi____.iiSections 841.005, 841.006, and 841.007, Health and Safety Code, are amended to read as follows:
Sec.i841.005.iiOFFICE OF STATE COUNSEL FOR OFFENDERS. (a)iiExcept
as provided by Subsection (b), the [The] Office of State Counsel for Offenders shall
represent an indigent [a] person subject to a civil commitment proceeding under this
chapter.
(b)iiIf for any reason the Office of State Counsel for Offenders is unable to represent an indigent person described by Subsection (a) at a civil commitment proceeding under this chapter, the court shall appoint other counsel to represent the indigent person.
Sec.i841.006.iiAPPLICATION OF CHAPTER. This chapter does not:
(1)iiprohibit a person committed under this chapter from filing at any time a petition for release under this chapter; or
(2)iicreate for the committed person a cause of action against another person for failure to give notice within a period required by Subchapter B, C, or D.
Sec.i841.007.iiDUTIES OF [INTERAGENCY] COUNCIL ON SEX
OFFENDER TREATMENT. The [Interagency] Council on Sex Offender Treatment
is responsible for providing appropriate and necessary treatment and supervision
through the case management system.
SECTIONi____.iiSection 841.022, Health and Safety Code, is amended to read as follows:
Sec.i841.022.iiMULTIDISCIPLINARY TEAM. (a) The executive director of the Texas Department of Criminal Justice and the commissioner of the Texas Department of Mental Health and Mental Retardation jointly shall establish a multidisciplinary team to review available records of a person referred to the team under Section 841.021. The team must include:
(1)iitwo persons from the Texas Department of Mental Health and Mental Retardation;
Friday, May 30, 2003 SENATE JOURNAL 3893
(2)iitwo [three] persons from the Texas Department of Criminal Justice, one
of whom must be from the victim services office of that department;
(3)iione person from the Texas Department of Public Safety; and
(4)iitwo persons [one person] from the council or council personnel.
(b)iiThe multidisciplinary team may request the assistance of other persons in
making an assessment [a determination] under this section.
(c)iiNot later than the 60th [30th] day after the date the multidisciplinary team
receives notice under Section 841.021(a) or (b), the team shall:
(1)iiassess [determine] whether the person is a repeat sexually violent
offender and whether the person is likely to commit a sexually violent offense after
release or discharge;
(2)iigive notice of that assessment [determination] to the Texas Department
of Criminal Justice or the Texas Department of Mental Health and Mental
Retardation, as appropriate; and
(3)iirecommend the assessment of the person for a behavioral abnormality, as appropriate.
SECTIONi____.iiSection 841.023, Health and Safety Code, is amended to read as follows:
Sec.i841.023.iiASSESSMENT FOR BEHAVIORAL ABNORMALITY.
(a)iiNot later than the 60th [30th] day after the date of a recommendation under
Section 841.022(c), the Texas Department of Criminal Justice or the Texas
Department of Mental Health and Mental Retardation, as appropriate, shall assess
[determine] whether the person suffers from a behavioral abnormality that makes the
person likely to engage in a predatory act of sexual violence. To aid in the assessment
[determination], the department required to make the assessment [determination] shall
use an expert to examine the person. That department may contract for the expert
services required by this subsection. The expert shall make a clinical assessment
based on testing for psychopathy, a clinical interview, and other appropriate
assessments and techniques to aid the department in its assessment [the
determination].
(b)iiIf as a result of the assessment the Texas Department of Criminal Justice or
the Texas Department of Mental Health and Mental Retardation believes [determines]
that the person suffers from a behavioral abnormality, the department making the
assessment [determination] shall give notice of that assessment [determination] and
provide corresponding documentation to the attorney representing the state not later
than the 60th [30th] day after the date of a recommendation under Section 841.022(c).
SECTIONi____.iiSubsection (b), Section 841.041, Health and Safety Code, is amended to read as follows:
(b)iiA petition described by Subsection (a) must be:
(1)iifiled not later than the 90th [60th] day after the date the person is
referred to the attorney representing the state; and
(2)iiserved on the person as soon as practicable after the date the petition is filed.
SECTIONi____.iiSection 841.061, Health and Safety Code, is amended by amending Subsections (a), (c), and (d) and adding Subsection (f) to read as follows:
3894 78th Legislature — Regular Session 82nd Day
(a)iiNot later than the 270th [60th] day after the date a petition is served on the
person [filed] under Section 841.041, the judge shall conduct a trial to determine
whether the person is a sexually violent predator.
(c)iiThe person and the state are each entitled to an immediate examination of the person by an expert. All components of the examination must be completed not later than the 90th day before the date the trial begins.
(d)iiAdditional rights of the person at the trial include the following:
(1)iithe right to appear at the trial;
(2)iiexcept as provided by Subsection (f), the right to present evidence on the person's behalf;
(3)iithe right to cross-examine a witness who testifies against the person; and
(4)iithe right to view and copy all petitions and reports in the court file.
(f)iiA person who is on trial to determine the person's status as a sexually violent predator is required to submit to all expert examinations that are required or permitted of the state to prepare for the person's trial. A person who fails to submit to expert examination on the state's behalf as required by this subsection is subject to the following consequences:
(1)iithe person's failure to participate may be used as evidence against the person at trial;
(2)iithe person may be prohibited from offering into evidence the results of an expert examination performed on the person's behalf; and
(3)iithe person may be subject to contempt proceedings if the person violates a court order by failing to submit to an expert examination on the state's behalf.
SECTIONi____.iiSection 841.063, Health and Safety Code, is amended to read as follows:
Sec.i841.063.iiCONTINUANCE. The judge may continue a trial or hearing
conducted under this chapter [Section 841.061] if the person is not substantially
prejudiced by the continuance and:
(1)iion the request of either party and a showing of good cause; or
(2)iion the judge's own motion in the due administration of justice.
SECTIONi____.iiSection 841.081, Health and Safety Code, is amended to read as follows:
Sec.i841.081.iiCIVIL COMMITMENT OF PREDATOR. (a)iiIf at a trial
conducted under Subchapter D the judge or jury determines that the person is a
sexually violent predator, the judge shall commit the person for outpatient treatment
and supervision to be coordinated by the case manager. The commitment order is
effective immediately on entry of the order, except that the [The] outpatient treatment
and supervision begins [must begin] on the person's release from a secure correctional
facility or discharge from a state hospital and continues [must continue] until the
person's behavioral abnormality has changed to the extent that the person is no longer
likely to engage in a predatory act of sexual violence.
(b)iiAt any time after entry of a commitment order under Subsection (a), the case manager may provide to the person instruction regarding the requirements associated with the order, regardless of whether the person is incarcerated at the time of the instruction.
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SECTIONi____.iiSection 841.082, Health and Safety Code, is amended to read as follows:
Sec.i841.082.iiCOMMITMENT REQUIREMENTS. (a) Before entering an order directing a person's outpatient civil commitment, the judge shall impose on the person requirements necessary to ensure the person's compliance with treatment and supervision and to protect the community. The requirements shall include:
(1)iirequiring the person to reside in a particular location;
(2)iiprohibiting the person's contact with a victim or potential victim of the person;
(3)iiprohibiting the person's use of alcohol or a controlled substance;
(4)iirequiring the person's participation in a specific course of treatment;
(5)iirequiring the person to submit to tracking under a particular type of tracking service and to any other appropriate supervision;
(6)iiprohibiting the person from changing the person's residence without prior authorization from the judge and from leaving the state without that prior authorization;
(7)iiif determined appropriate by the judge, establishing a child safety zone in the same manner as a child safety zone is established by a judge under Section 13B, Article 42.12, Code of Criminal Procedure, and requiring the person to comply with requirements related to the safety zone;
(8)iirequiring the person to notify the case manager immediately but in any
event within 24 [48] hours of any change in the person's status that affects proper
treatment and supervision, including a change in the person's physical health or job
status and including any incarceration of the person; and
(9)iiany other requirements determined necessary by the judge.
(b)iiThe judge may request assistance from the council in determining an appropriate residence for the person.
(c)iiThe judge shall provide a copy of the requirements imposed under Subsection (a) to the person and to the council. The council shall provide a copy of those requirements to the case manager and to the service providers.
(d)i[(c)]iiImmediately after the case becomes final for purposes of appeal
[person's commitment], the judge shall transfer jurisdiction of the case to a district
court, other than a family district court, having jurisdiction in the county in which the
person [defendant] is residing, except that the judge retains jurisdiction of the case
with respect to a civil commitment proceeding conducted under Subchapters F and G.
(e)iiThe requirements imposed under Subsection (a) may be modified at any time after notice to each affected party to the proceedings and a hearing.
SECTIONi____.iiSubsections (b), (c), and (d), Section 841.083, Health and Safety Code, are amended to read as follows:
(b)iiThe case manager shall provide supervision to the person. The provision of
supervision shall include a tracking service [services] and, if required by court order,
supervised housing.
(c)iiThe council shall enter into an interagency agreement with the Texas
Department of Public Safety for the provision of a tracking service [services]. If the
equipment necessary to implement that service is available through a contract entered
into by [The Department of Public Safety shall contract with] the Texas Building and
3896 78th Legislature — Regular Session 82nd Day
(d)iiThe council shall enter into an interagency agreement with the Texas
Department of Criminal Justice [contract] for any necessary supervised housing. The
council shall reimburse that department for housing costs under this section. The
committed person may not be housed for any period of time in a mental health facility,
state school, or community center. In this subsection:
(1)ii"Community center" means a center established under Subchapter A, Chapter 534.
(2)ii"Mental health facility" has the meaning assigned by Section 571.003.
(3)ii"State school" has the meaning assigned by Section 531.002.
SECTIONi____.iiSection 841.084, Health and Safety Code, is amended to read as follows:
Sec.i841.084.ii[PROVIDER] STATUS REPORTS. A treatment provider or
tracking service personnel [a supervision provider] other than the case manager shall
submit, monthly or more frequently if required by the case manager, a report to the
case manager stating whether the person is complying with treatment or tracking
[supervision] requirements, as applicable.
SECTIONi____.iiSubsection (a), Section 841.141, Health and Safety Code, is amended to read as follows:
(a)iiThe council by rule shall administer treatment and supervision under this chapter. Rules adopted by the council under this section must be:
(1)iirelated to treatment and supervision under this chapter; and
(2)iiconsistent with the purposes of this chapter.
SECTIONi____.iiSubsections (a), (c), and (d), Section 841.142, Health and Safety Code, are amended to read as follows:
(a)iiTo protect the public and to enable an assessment or [a] determination
relating to whether a person is a sexually violent predator, any entity that possesses
relevant information relating to the person shall release the information to an entity
charged with making an assessment or [a] determination under this chapter.
(c)iiOn the written request of any attorney for another state or for a political subdivision in another state, the Texas Department of Criminal Justice, the council, a service provider contracting with one of those agencies, the multidisciplinary team, and the attorney representing the state shall release to the attorney any available information relating to a person that is sought in connection with an attempt to civilly commit the person as a sexually violent predator in another state.
(d)iiTo protect the public and to enable an assessment or [a] determination
relating to whether a person is a sexually violent predator or to enable the provision of
supervision and treatment to a person who is a sexually violent predator, the Texas
Department of Criminal Justice, the council, a service provider contracting with one
of those agencies, the multidisciplinary team, and the attorney representing the state
may exchange any available information relating to the person.
SECTIONi____.iiSection 841.144, Health and Safety Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3897
Sec.i841.144.iiCOUNSEL. (a)iiImmediately after the filing of a petition under
Section 841.041 [At all stages of the civil commitment proceedings under this
chapter], a person subject to a civil commitment proceeding under this chapter is
entitled to the assistance of counsel at all stages of the proceeding.
(b)iiIf the person is indigent, the court shall appoint counsel as appropriate under
Section 841.005 [through the Office of State Counsel for Offenders] to assist the
person.
SECTIONi____.iiSubsections (b) and (c), Section 841.146, Health and Safety Code, are amended to read as follows:
(b)iiExcept as otherwise provided by this subsection, a [A] civil commitment
proceeding is subject to the rules of procedure and appeal for civil cases. To the extent
of any conflict between this chapter and the rules of procedure and appeal for civil
cases, this chapter controls.
(c)iiIn an amount not to exceed $2,500 [$1,600], the State of Texas [state] shall
pay all [the] costs associated with [of] a civil commitment proceeding conducted
under Subchapter D. The State of Texas [For any civil commitment proceeding
conducted under this chapter, the state] shall pay the reasonable costs of state or
appointed counsel or experts for any other civil commitment proceeding conducted
under this chapter and shall pay the reasonable costs of the person's outpatient
treatment and supervision.
SECTIONi____.iiSubchapter H, Chapter 841, Health and Safety Code, is amended by adding Sections 841.1461, 841.1462, 841.1463, and 841.150 to read as follows:
Sec.i841.1461.iiCERTAIN EXPERT TESTIMONY NOT REQUIRED FOR CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATOR. A person who suffers from a behavioral abnormality as determined under this chapter is not because of that abnormality a person of unsound mind for purposes of Section 15-a, Article I, Texas Constitution.
Sec.i841.1462.iiPRIVILEGE FOR PERSONAL INFORMATION THAT IDENTIFIES VICTIM. Personal information, including a home address, home telephone number, and social security account number, that identifies the victim of a person subject to a civil commitment proceeding under this chapter is privileged from discovery by that person.
Sec.i841.1463.iiFAILURE TO GIVE NOTICE WITHIN RELEVANT PERIOD NOT JURISDICTIONAL ERROR. The periods within which notice must be given under this chapter are binding on all appropriate persons as provided by this chapter, but a failure to give notice within the relevant period is not a jurisdictional error.
Sec.i841.150.iiEFFECT OF CERTAIN SUBSEQUENT CONVICTIONS, JUDGMENTS, OR VERDICTS ON ORDER OF CIVIL COMMITMENT. (a)iiExcept as provided by Subsection (b), the following convictions, judgments, or verdicts do not affect an order of civil commitment under this chapter:
(1)iia conviction for a felony if a sentence is not imposed;
(2)iia conviction for a misdemeanor, regardless of whether a sentence is imposed; and
3898 78th Legislature — Regular Session 82nd Day
(3)iia judgment or verdict of not guilty by reason of insanity for any offense absent a corresponding commitment to the Texas Department of Mental Health and Mental Retardation.
(b)iiThe statutory duties imposed by this chapter are suspended for the duration of any confinement of a person who receives a conviction described by Subsection (a)(2).
SECTIONi____.iiSection 841.147, Health and Safety Code, is amended to read as follows:
Sec.i841.147.iiIMMUNITY. The following persons are immune from liability for good faith conduct under this chapter:
(1)iian employee or officer of the Texas Department of Criminal Justice, the Texas Department of Mental Health and Mental Retardation, the Texas Department of Health, or the council;
(2)iia member of the multidisciplinary team established under Section 841.022;
(3)iian employee of the division of the prison prosecution unit charged with
initiating and pursuing civil commitment proceedings under this chapter [the attorney
representing the state]; and
(4)iia person contracting, appointed, or volunteering to perform a service under this chapter.
SECTIONi____.iiThe change in law made by this Act in amending Chapter 841, Health and Safety Code, applies to civil commitment proceedings initiated before, on, or after the effective date of this Act.
Floor Amendment No. 2
Amend Floor Amendment No. 1 by Allen to CSSB 871 as follows:
(1) In amended Section 841.082(a), Health and Safety Code (page 6, lines 13-19), strike Subdivisions (3) - (5) and substitute the following:
(3) prohibiting the person's possession or use of alcohol, inhalants, or a controlled substance;
(4) requiring the person's participation in and compliance with a specific course of treatment;
(5) requiring the person to:
(A) submit to tracking under a particular type of tracking service and to any other appropriate supervision; and
(B) refrain from tampering with, altering, modifying, obstructing, or manipulating the tracking equipment;
(2) Strike amended Section 841.084, Health and Safety Code (page 8, lines 18-23), and substitute the following:
Sec. 841.084. [PROVIDER] STATUS REPORTS AND OTHER
INFORMATION. (a) A treatment provider or a supervision provider, other than the
case manager or tracking service personnel, shall submit, monthly or more frequently
if required by the case manager, a report to the case manager stating whether the
person is complying with treatment or supervision requirements, as applicable.
(b) Tracking service personnel may provide to the case manager specific information relating to the person, including the person's compliance with a tracking requirement or involvement in criminal activity, if:
Friday, May 30, 2003 SENATE JOURNAL 3899
(1) the council and the Department of Public Safety have entered into a memorandum of understanding governing:
(A) the release of the information by the tracking personnel; and
(B) the use or dissemination of the information by the case manager; and
(2) the release, use, or dissemination is not prohibited by other law or agreement.
(3) Strike the SECTION of the amendment that amends Section 841.141(a), Health and Safety Code (page 8, lines 24-31).
(4) In amended Section 841.147, Health and Safety Code (page 12, lines 4-5), strike Subdivision (4) and substitute the following:
(4) a person providing, or contracting, appointed, or volunteering to perform, a tracking service or another service under this chapter.
Floor Amendment No. 1 on Third Reading
Amend CSSB 871 on third reading by adding the following appropriately numbered SECTION to the bill and by renumbering existing SECTIONS of the bill accordingly:
SECTION ____. Article 62.02(c), Code of Criminal Procedure, is amended to read as follows:
(c) Not later than the third day after a person's registering, the local law enforcement authority with whom the person registered shall send a copy of the registration form to the department and, if the person resides on the campus of a public or private institution of higher education, to any authority for campus security for that institution.
The amendments were read.
Senator Shapiro moved to concur in the House amendments to SBi871.
The motion prevailed by a viva voce vote.
(Senator Shapleigh in Chair)
VOTE RECONSIDERED ON
COMMITTEE SUBSTITUTE HOUSE BILL 2877
CSHBi2877 was laid before the Senate. The bill had been passed in the Senate, returned to the House, and sent back to the Senate for further consideration:
CSHB 2877, Relating to the permitting procedures of the Texas Commission on Environmental Quality.
On motion of Senator Armbrister and by unanimous consent, the vote by which CSHBi2877 was finally passed was reconsidered.
Question — Shall CSHB 2877 be again finally passed?
Senator Armbrister offered the following amendment to the bill:
Floor Amendment No. 1 on Third Reading
Amend CSHB 2877 by striking Floor Amendment Nos. 1, 3, 4, 6, and 8.
The floor amendment was read and was adopted without objection.
3900 78th Legislature — Regular Session 82nd Day
Senator Fraser offered the following amendment to the bill:
Floor Amendment No. 2 on Third Reading
Amend CSHB 2877 by deleting Section 6 and renumbering the subsequent sections accordingly.
The floor amendment was read and was adopted without objection.
On motion of Senator Armbrister and by unanimous consent, the caption was again amended to conform to the body of the bill as amended.
CSHB 2877 as again amended was again finally passed by a viva voce vote.
RESOLUTIONS SIGNED
The Presiding Officer announced the signing of the following enrolled resolutions in the presence of the Senate:iiHCRi125, HCRi272, HJRi16.
SENATE BILL 381 WITH HOUSE AMENDMENTS
Senator Armbrister called SBi381 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 381 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to food manufacturer and food wholesaler licensing requirements under the Texas Food, Drug, and Cosmetic Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 431.221, Health and Safety Code, is amended by amending Subdivisions (2) and (3) and adding Subdivision (6) to read as follows:
(2)ii"Food manufacturer" means a person who combines, purifies, processes, or packages food for sale through a wholesale outlet. The term also includes a retail outlet that packages or labels food before sale and a person that represents itself as responsible for the purity and proper labeling of an article of food by labeling the food with the person's name and address. The term does not include a restaurant that provides food for immediate human consumption to a political subdivision or to a licensed nonprofit organization if the restaurant would not otherwise be considered a food manufacturer under this subdivision.
(3)ii"Food wholesaler" means a person who distributes food for resale, either through a retail outlet owned by that person or through sales to another person. The term "food wholesaler" shall not include:
(A)iia commissary which distributes food primarily intended for
immediate consumption on the premises of a retail outlet under common ownership;
[or]
(B)iian establishment engaged solely in the distribution of nonalcoholic beverages in sealed containers; or
Friday, May 30, 2003 SENATE JOURNAL 3901
(C)iia restaurant that provides food for immediate human consumption to a political subdivision or to a licensed nonprofit organization if the restaurant would not otherwise be considered a food wholesaler under this subdivision.
(6)ii"Licensed nonprofit organization" means an organization that is licensed under any statutory authority of the State of Texas and is exempt from federal income taxation under Section 501(a), Internal Revenue Code of 1986, and its subsequent amendments, as an organization described in Section 501(c)(3) of that code.
SECTIONi2.iiSection 431.2211(a), Health and Safety Code, is amended to read as follows:
(a)iiA person is not required to hold a license under this subchapter if the person is:
(1)iia person, firm, or corporation that only harvests, packages, washes, or ships raw fruits or vegetables;
(2)iian individual who only sells prepackaged nonperishable foods,
including dietary supplements, from a private home as a direct seller; [or]
(3)iia person who holds a license under Chapter 432 and who only engages in conduct within the scope of that license; or
(4)iia restaurant that provides food for immediate human consumption to a political subdivision or to a licensed nonprofit organization if the restaurant would not otherwise be required to hold a license under this subchapter.
SECTIONi3.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 Armbrister moved to concur in the House amendment to SBi381.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 1252 WITH HOUSE AMENDMENT
Senator Armbrister called SBi1252 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 1252 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of certain activities associated with providing private security.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 1702.002, Occupations Code, is amended by amending Subdivisions (1) and (6) and adding Subdivision (6-a) to read as follows:
(1)ii"Alarm system" means:
(A)iielectronic equipment and devices designed to detect or signal:
3902 78th Legislature — Regular Session 82nd Day
(i)iian unauthorized entry or attempted entry of a person or object into a residence, business, or area monitored by the system; or
(ii)iithe occurrence of a robbery or other emergency;
(B)iielectronic equipment and devices using a computer or data processor designed to control the access of a person, vehicle, or object through a door, gate, or entrance into the controlled area of a residence or business; or
(C)iia television camera or still camera system that records, archives, or
monitors property or individuals in a public or private area of a residence or business
[an alarm system, burglar alarm signal device, burglar alarm, robbery alarm, television
camera, or still camera used to signal the presence of an emergency to which law
enforcement or emergency services are expected to respond].
(6)ii"Detection device" means an electronic device used as a part of an alarm
system [a burglar or robbery alarm], including a control, communications device,
motion detector, door or window switch, sound detector, vibration detector, light
beam, pressure mat, wiring, or similar device.
(6-a)ii"Electronic access control device" means an electronic, electrical, or computer-based device that allows access to a controlled area of a business, but that is not monitored and does not send a signal to which law enforcement or emergency services respond. The term does not include a mechanical device, such as a deadbolt or lock.
SECTIONi2.iiSubchapter D, Chapter 1702, Occupations Code, is amended by adding Section 1702.0635 to read as follows:
Sec.i1702.0635.iiRESTRICTIONS ON CERTAIN RULES. The commission may not adopt rules or establish unduly restrictive experience or education requirements that limit a person's ability to be licensed as an electronic access control device company or be registered as an electronic access control device installer.
SECTIONi3.iiSubchapter F, Chapter 1702, Occupations Code, is amended by adding Section 1702.1025 to read as follows:
Sec.i1702.1025.iiELECTRONIC ACCESS CONTROL DEVICE COMPANY LICENSE REQUIRED; SCOPE OF LICENSE. (a)iiUnless the person holds a license as an electronic access control device company, a person may not:
(1)iiact as an electronic access control device company;
(2)iioffer to perform the services of an electronic access control device company; or
(3)iiengage in business activity for which a license is required under this chapter.
(b)iiA person licensed as an electronic access control device company may not install alarm systems unless otherwise licensed or registered to install alarm systems under this chapter.
SECTIONi4.iiSubsections (a) and (b), Section 1702.103, Occupations Code, are amended to read as follows:
(a)iiThe license classifications are:
(1)iiClass A: investigations company license, covering operations of an investigations company;
(2)iiClass B: security services contractor license, covering operations of a
security services contractor; [and]
Friday, May 30, 2003 SENATE JOURNAL 3903
(3)iiClass C: covering the operations included within Class A and Class B; and
(4)iiClass D: electronic access control device license, covering operations of an electronic access control device company.
(b)iiA Class A, B, [or] C, or D license does not authorize the license holder to
perform a service for which the license holder has not qualified. A person may not
engage in an operation outside the scope of that person's license. The commission
shall indicate on the license the services the license holder is authorized to perform.
The license holder may not perform a service unless it is indicated on the license.
SECTIONi5.iiSubchapter F, Chapter 1702, Occupations Code, is amended by adding Sections 1702.1055 and 1702.1056 to read as follows:
Sec.i1702.1055.iiELECTRONIC ACCESS CONTROL DEVICE COMPANY. A person acts as an electronic access control device company for the purposes of this chapter if the person installs or maintains an electronic access control device.
Sec.i1702.1056.iiLOCKSMITH COMPANY. A person acts as a locksmith company for the purposes of this chapter if the person sells, installs, or maintains mechanical security devices, including deadbolts and locks, and:
(1)iiadvertises services offered by the company using the term "locksmith"; or
(2)iiincludes the term "locksmith" in the company's name.
SECTIONi6.iiSubsection (a), Section 1702.124, Occupations Code, is amended to read as follows:
(a)iiThe commission may not issue a license unless the applicant files with the commission:
(1)iievidence of a general liability insurance policy on a certificate of
insurance form prescribed by the Texas Department of Insurance [commission] and
countersigned by an insurance agent licensed in this state; or
(2)iia certificate of insurance for surplus lines coverage obtained under
Chapter 981 [Article 1.14-2], Insurance Code, through a licensed Texas surplus lines
agent resident in this state.
SECTIONi7.iiSection 1702.221, Occupations Code, is amended to read as follows:
Sec.i1702.221.iiREGISTRATION REQUIRED. An individual must register with the commission as provided by commission rule if the individual:
(1)iiis employed as an alarm systems installer, alarm systems monitor, electronic access control device installer, locksmith, dog trainer, manager or branch office manager, noncommissioned security officer, private investigator, private security consultant, or security salesperson; or
(2)iiis an owner, officer, partner, or shareholder of a license holder.
SECTIONi8.iiSubchapter J, Chapter 1702, Occupations Code, is amended by adding Section 1702.2225 to read as follows:
Sec.i1702.2225.iiLOCKSMITH COMPANY REGISTRATION REQUIRED. Unless the person is registered as a locksmith company, a person may not:
(1)iiact as a locksmith company;
(2)iioffer to perform the services of a locksmith company; or
3904 78th Legislature — Regular Session 82nd Day
(3)iiengage in business activity for which registration is required under this chapter.
SECTIONi9.iiSubchapter J, Chapter 1702, Occupations Code, is amended by adding Sections 1702.2226 and 1702.2227 to read as follows:
Sec.i1702.2226.iiELECTRONIC ACCESS CONTROL DEVICE INSTALLER. (a)iiAn individual acts as an electronic access control device installer for purposes of this chapter if the individual installs, maintains, or repairs an electronic access control device.
(b)iiA person registered as an electronic access control device installer may not install alarm systems unless the person is registered under this chapter as an alarm systems installer.
Sec.i1702.2227.iiLOCKSMITH. An individual acts as a locksmith for the purposes of this chapter if the person sells, installs, or maintains mechanical security devices, including deadbolts and locks, and advertises or offers services to the public or represents to the public that the person is a locksmith.
SECTIONi10.iiSubchapter J, Chapter 1702, Occupations Code, is amended by adding Section 1702.236 to read as follows:
Sec.i1702.236.iiEXAMINATION AND TRAINING REQUIREMENTS FOR ELECTRONIC ACCESS CONTROL DEVICE INSTALLERS. (a)iiThe commission shall require an individual who applies for registration as an electronic access control device installer to pass an examination given by the commission or a person approved by the commission. The examination must cover material related to access control.
(b)iiBefore September 1, 2005, the commission shall allow an electronic access control device installer to obtain or renew a certificate of registration by fulfilling the requirements of a commission-approved, industry-based educational training program. This subsection expires September 1, 2006.
(c)iiOn and after September 1, 2005, the commission by rule may allow an electronic access control device installer to obtain or renew a certificate of registration by fulfilling the requirements of a commission-approved, industry-based educational training program.
(d)iiA party who asserts that the commission has adopted a rule in violation of Subsection (b) or (c) may appeal to the attorney general for a determination of whether the rule violates the subsection because the rule does not comply with reasonable business practices. The attorney general shall make a determination on an appeal submitted under this section not later than the 90th day after the date the appeal is submitted or within a reasonable time as circumstances require. The challenged rule may not take effect until after the attorney general makes a determination. This subsection expires September 1, 2007.
SECTIONi11.iiSection 1702.223, Occupations Code, is amended to read as follows:
Sec.i1702.223.iiALARM SYSTEMS INSTALLER. (a)iiAn individual acts as an alarm systems installer for purposes of this chapter if the individual installs, maintains, or repairs an alarm system or detection device.
(b)iiAn alarm systems installer may install, maintain, or repair an electronic access control device.
Friday, May 30, 2003 SENATE JOURNAL 3905
SECTIONi12.iiSubsection (a), Section 1702.239, Occupations Code, is amended to read as follows:
(a)iiThe commission may require that an individual employed as an alarm
systems installer or security salesperson hold a certification by a
commission-approved training program to renew an initial registration. The
commission may approve only nationally recognized training programs that consist of
at least 16 [20] hours of classroom study in the areas of work allowed by the
registration. To be approved, a training program must offer at least two certification
programs each year, sufficient to complete the requirements of this subsection, within
100 miles of each county in the state that has a population of more than 500,000.
SECTIONi13.iiSubsection (b), Section 1702.324, Occupations Code, is amended to read as follows:
(b)iiThis chapter does not apply to:
(1)iia manufacturer or a manufacturer's authorized distributor who sells equipment to a license holder or registrant that is used in the operations for which the person is required to be licensed or registered;
(2)iia person engaged exclusively in the business of obtaining and providing information to:
(A)iidetermine creditworthiness;
(B)iicollect debts; or
(C)iiascertain the reliability of information provided by an applicant for property, life, or disability insurance or an indemnity or surety bond;
(3)iia person engaged exclusively in the business of repossessing property that is secured by a mortgage or other security interest;
(4)ii[a locksmith who:
[(A)iidoes not install or service detection devices;
[(B)iidoes not conduct investigations; and
[(C)iiis not a security services contractor;
[(5)]iia person who:
(A)iiis engaged in the business of psychological testing or other testing and interviewing services, including services to determine attitudes, honesty, intelligence, personality, and skills, for preemployment purposes; and
(B)iidoes not perform any other service that requires a license under this chapter;
(5)i[(6)]iia person who:
(A)iiis engaged in obtaining information that is a public record under Chapter 552, Government Code, regardless of whether the person receives compensation;
(B)iiis not a full-time employee, as defined by Section 61.001, Labor Code, of a person licensed under this chapter; and
(C)iidoes not perform any other act that requires a license under this chapter;
(6)i[(7)]iia licensed [professional] engineer practicing engineering or directly
supervising engineering practice under Chapter 1001 [The Texas Engineering Practice
Act (Article 3271a, Vernon's Texas Civil Statutes)], including forensic analysis,
burglar alarm system engineering, and necessary data collection;
3906 78th Legislature — Regular Session 82nd Day
(7)i[(8)]iian employee of a cattle association who inspects livestock brands
under the authority granted to the cattle association by the Grain Inspection, Packers
and Stockyards Administration of the United States Department of Agriculture;
(8)i[(9)]iia landman performing activities in the course and scope of the
landman's business;
(9)i[(10)]iian attorney while engaged in the practice of law;
(10)i[(11)]iia person who obtains a document for use in litigation under an
authorization or subpoena issued for a written or oral deposition; [or]
(11)i[(12)]iian admitted insurer, insurance adjuster, agent, or insurance
broker licensed by the state, performing duties in connection with insurance transacted
by that person; or
(12)iia person who on the person's own property or on property owned or managed by the person's employer:
(A)iiinstalls, changes, or repairs a mechanical security device;
(B)iirepairs an electronic security device; or
(C)iicuts or makes a key for a security device.
SECTIONi14.iiSection 1702.328, Occupations Code, is amended to read as follows:
Sec.i1702.328.iiSECURITY SYSTEMS SALES AND INSTALLATION. This chapter does not apply to:
(1)iia person who owns and installs a burglar detection or alarm device on the person's own property or, if the person does not charge for the device or the installation, installs the device for the protection of the person's personal property located on another person's property and does not, as a normal business practice, install the devices on the property of another;
(2)iia person in the business of building construction that installs electrical wiring and devices that may include in part the installation of a burglar alarm or detection device if:
(A)iithe person is a party to a contract that provides that:
(i)iithe installation will be performed under the direct supervision of, and inspected and certified by, a person licensed to install and certify the alarm or detection device; and
(ii)iithe license holder assumes full responsibility for the installation of the alarm or detection device; and
(B)iithe person does not service or maintain alarm systems, electronic
access control devices, locks, [burglar alarms] or detection devices;
(3)iia person who sells or installs automobile burglar alarm devices and who does not perform any other act that requires a license under this chapter; or
(4)iia person who sells exclusively over the counter or by mail order
[burglar] alarm systems, electronic access control devices, locks, or detection [signal]
devices[, burglary alarms, television cameras, still cameras, or other electrical,
mechanical, or electronic devices used for preventing or detecting burglary, theft, or
other losses].
SECTIONi15.ii(a)iiNot later than January 1, 2004, the Texas Commission on Private Security shall adopt the rules necessary to administer the changes in law made by this Act to Chapter 1702, Occupations Code.
Friday, May 30, 2003 SENATE JOURNAL 3907
(b)iiNotwithstanding Sections 1702.1025 and 1702.2225, Occupations Code, as added by this Act, and Section 1702.221, Occupations Code, as amended by this Act, a person is not required to hold a license as an electronic access control device company or be registered as an electronic access control device installer, a locksmith company, or a locksmith before September 1, 2004.
SECTIONi16.ii(a)iiExcept as provided by Subsection (b) of this section, this Act takes effect September 1, 2003.
(b)iiSections 1702.1025 and 1702.2225, Occupations Code, as added by this Act, take effect January 1, 2004.
The amendment was read.
Senator Armbrister moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1252 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Armbrister, Chair; Fraser, Williams, Lucio, and Hinojosa.
SENATE BILL 1262 WITH HOUSE AMENDMENT
Senator Armbrister called SBi1262 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Floor Amendment No. 1
Amend SBi1262 by striking SECTION 2 of the bill and substituting the following:
SECTIONi2.ii(a)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.
(b)iiThis Act applies only to an economic incentive agreement, including a renewal or renegotiation of a previous agreement, entered into on or after the effective date of this Act. An economic incentive agreement, including a renewal or renegotiation of a previous agreement, entered into before the effective date of this Act is governed by the law in effect on the date the agreement was entered into, and that law is continued in effect for that purpose.
The amendment was read.
3908 78th Legislature — Regular Session 82nd Day
Senator Armbrister moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1262 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Armbrister, Chair; Madla, Brimer, Ratliff, and Lucio.
CONFERENCE COMMITTEE ON HOUSE BILL 1883
Senator Ogden called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1883 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1883 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Ogden, Chair; Shapleigh, Wentworth, Madla, and Barrientos.
SENATE BILL 346 WITH HOUSE AMENDMENT
Senator Ogden called SBi346 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 346 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to an optional flexible year program for public school students who fail to perform satisfactorily on an assessment instrument or who would not otherwise be promoted.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubchapter C, Chapter 29, Education Code, is amended by adding Section 29.0821 to read as follows:
Sec.i29.0821.iiOPTIONAL FLEXIBLE YEAR PROGRAM. (a)iiA school district may provide a flexible year program for students who did not or are likely not to perform successfully on an assessment instrument administered under Section 39.023 or who would not otherwise be promoted to the next grade level.
Friday, May 30, 2003 SENATE JOURNAL 3909
(b)iiTo enable a school district to provide additional instructional days for a program under this section, with the approval of the commissioner, a school district may:
(1)iiprovide a number of days of instruction during the regular school year that is not more than 10 days fewer than the number required under Section 25.081(a); and
(2)iiuse for instructional purposes not more than five days that would otherwise be used for staff development or teacher preparation.
(c)iiNotwithstanding any reduction in the number of instructional days in the regular school year or in the number of staff development days, each educator employed under a 10-month contract must provide the minimum days of service required under Section 21.401.
(d)iiA school district may require educational support personnel to provide service as necessary for an optional flexible year program.
(e)iiThe commissioner may adopt rules for the administration of programs provided under this section.
SECTIONi2.iiSubsection (a), Section 25.081, Education Code, is amended to read as follows:
(a)iiExcept as authorized under Subsection (b) of this section, [or] Section
25.084, or Section 29.0821, for each school year each school district must operate so
that the district provides for at least 180 days of instruction for students.
SECTIONi3.iiSubsection (a), Section 42.005, Education Code, is amended to read as follows:
(a)iiIn this chapter, average daily attendance is:
(1)iithe quotient of the sum of attendance for each day of the minimum number of days of instruction as described under Section 25.081(a) divided by the minimum number of days of instruction; or
(2)iifor a district that operates under a flexible year program under Section 29.0821, the quotient of the sum of attendance for each actual day of instruction as permitted by Section 29.0821(b)(1) divided by the number of actual days of instruction as permitted by Section 29.0821(b)(1).
SECTIONi4.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 Ogden moved to concur in the House amendment to SBi346.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 1932 WITH HOUSE AMENDMENT
Senator Ogden called SBi1932 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.
3910 78th Legislature — Regular Session 82nd Day
Committee Amendment No. 1
Amend SBi1932, in SECTION 1 of the bill, in proposed Section 43.171(c), Government Code (page 1, line 14), before "This subsection expires February 1, 2005." by inserting "The duties under this subsection are in addition to the duties of the prison prosecution unit and the attorney employed by the prison prosecution unit. The prison prosecution unit and the attorney employed by the prison prosecution unit are not entitled to additional compensation or reimbursement."
The amendment was read.
Senator Ogden moved to concur in the House amendment to SBi1932.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 1488 WITH HOUSE AMENDMENT
Senator Ogden called SBi1488 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 1488 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the misconduct of a person who is employed by or is seeking employment by a school district, regional education service center, or shared services arrangement.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubsection (b), Section 12.104, Education Code, is amended to read as follows:
(b)iiAn open-enrollment charter school is subject to:
(1)iia provision of this title establishing a criminal offense; and
(2)iia prohibition, restriction, or requirement, as applicable, imposed by this title or a rule adopted under this title, relating to:
(A)iithe Public Education Information Management System (PEIMS) to the extent necessary to monitor compliance with this subchapter as determined by the commissioner;
(B)iicriminal history records under Subchapter C, Chapter 22;
(C)iireading instruments and accelerated reading instruction programs under Section 28.006;
(D)iisatisfactory performance on assessment instruments and to accelerated instruction under Section 28.0211;
(E)iihigh school graduation under Section 28.025;
(F)iispecial education programs under Subchapter A, Chapter 29;
(G)iibilingual education under Subchapter B, Chapter 29;
(H)iiprekindergarten programs under Subchapter E, Chapter 29;
(I)iiextracurricular activities under Section 33.081;
(J)iidiscipline management practices or behavior management techniques under Section 37.0021;
(K)iihealth and safety under Chapter 38; [and]
Friday, May 30, 2003 SENATE JOURNAL 3911
(L)iipublic school accountability under Subchapters B, C, D, and G, Chapter 39; and
(M)iithe requirement under Section 21.006 to report an educator's misconduct.
SECTIONi2.iiSubchapter A, Chapter 21, Education Code, is amended by adding Section 21.006 to read as follows:
Sec.i21.006.iiREQUIREMENT TO REPORT MISCONDUCT. (a)iiIn this section, "abuse" has the meaning assigned by Section 261.001, Family Code, and includes any sexual conduct involving an educator and a student or minor.
(b)iiIn addition to the reporting requirement under Section 261.101, Family Code, the superintendent or director of a school district, regional education service center, or shared services arrangement shall notify the State Board for Educator Certification if the superintendent or director has reasonable cause to believe that:
(1)iian educator employed by or seeking employment by the district, service center, or shared services arrangement has a criminal record;
(2)iian educator's employment at the district, service center, or shared services arrangement was terminated based on a determination that the educator:
(A)iiabused or otherwise committed an unlawful act with a student or minor;
(B)iipossessed, transferred, sold, or distributed a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq., and its subsequent amendments;
(C)iiillegally transferred, appropriated, or expended funds or other property of the district, service center, or shared services arrangement;
(D)iiattempted by fraudulent or unauthorized means to obtain or alter a professional certificate or license for the purpose of promotion or additional compensation; or
(E)iicommitted a criminal offense or any part of a criminal offense on school property or at a school-sponsored event; or
(3)iithe educator resigned and reasonable evidence supports a recommendation by the superintendent or director to terminate the educator based on a determination that the educator engaged in misconduct described by Subdivision (2).
(c)iiThe superintendent or director must notify the State Board for Educator Certification by filing a report with the board not later than the seventh day after the date the superintendent or director first learns about an alleged incident of misconduct described by Subsection (b). The report must be:
(1)iiin writing; and
(2)iiin a form prescribed by the board.
(d)iiThe superintendent or director shall notify the board of trustees or governing body of the school district, regional education service center, or shared services arrangement and the educator of the filing of the report required by Subsection (c).
(e)iiA superintendent or director who in good faith and while acting in an official capacity files a report with the State Board for Educator Certification under this section is immune from civil or criminal liability that might otherwise be incurred or imposed.
3912 78th Legislature — Regular Session 82nd Day
(f)iiThe State Board for Educator Certification shall determine whether to impose sanctions against a superintendent or director who fails to file a report in violation of Subsection (c).
(g)iiThe State Board for Educator Certification shall propose rules as necessary to implement this section.
SECTIONi3.iiSubsection (d), Section 261.105, Family Code, is amended to read as follows:
(d)iiIf the department initiates an investigation and determines that the abuse or neglect does not involve a person responsible for the child's care, custody, or welfare, the department shall refer the report to a law enforcement agency for further investigation. If the department determines that the abuse or neglect involves an employee of a public primary or secondary school, and that the child is a student at the school, the department shall orally notify the superintendent of the school district in which the employee is employed about the investigation.
SECTIONi4.iiThis Act applies beginning with the 2003-2004 school year.
SECTIONi5.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 Ogden moved to concur in the House amendment to SBi1488.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 1912 WITH HOUSE AMENDMENT
Senator Jackson called SBi1912 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer, Senator Shapleigh in Chair, laid the bill and the House amendment before the Senate.
Amendment
Amend SB 1912 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the Harborside Management District; providing authority to impose taxes and issue bonds.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiCREATION OF DISTRICT. (a)iiThe Harborside Management District is a special district created under Section 59, Article XVI, Texas Constitution.
(b)iiThe board by resolution may change the name of the district.
SECTIONi2.iiDEFINITIONS. In this Act:
(1)ii"Board" means the board of directors of the district.
(2)ii"District" means the Harborside Management District.
SECTIONi3.iiDECLARATION OF INTENT. (a)iiThe creation of the district is essential to accomplish the purposes of Sections 52 and 52-a, Article III, and Section 59, Article XVI, Texas Constitution, and other public purposes stated in this Act.
Friday, May 30, 2003 SENATE JOURNAL 3913
(b)iiThe creation of the district is necessary to promote, develop, encourage, and maintain employment, commerce, transportation, housing, tourism, recreation, the arts, entertainment, economic development, safety, and the public welfare in the area of the district.
(c)iiThe creation of the district and this legislation may not be interpreted to relieve Galveston County or the City of Galveston from providing the level of services provided, as of the effective date of this Act, to the area in the district. The district is created to supplement and not to supplant the county or city services provided in the area in the district.
(d)iiBy creating the district and in authorizing the City of Galveston, Galveston County, and other political subdivisions to contract with the district, the legislature has established a program to accomplish the public purposes set out in Section 52-a, Article III, Texas Constitution.
SECTIONi4.iiBOUNDARIES. The district includes all the territory contained in the following described area:
BEGINNING at the intersection of the Southerly right-of-way line of Harborside Dr. and the Westerly right-of-way line of 77th Street;
THENCE proceeding in a Northerly direction a distance of approximately 6,414 feet, from said BEGINNING POINT, across Harborside Dr. along the Westerly right-of-way line of 77th Street and continuing beyond the street's terminus along a projection to a point for corner in Galveston Bay at the Southerly boundary of the Intercoastal Waterway;
THENCE in an Easterly direction a distance of approximately 9,827 feet along the Southerly boundary of the Intercoastal Waterway to a point for a corner in the Bay where the Northerly projection of the Easterly right-of-way line of 57th Street intersects said Southerly Intercoastal Waterway boundary;
THENCE in a Southerly direction a distance of approximately 4,385 feet along said Northerly projection of the Easterly right-of-way line of 57th Street to a point for corner where said projection intersects the Southerly right-of-way of Harborside Dr.;
THENCE in a Westerly direction a distance of approximately 8,697 feet along the Southerly right-of-way of Harborside Dr. to the PLACE OF BEGINNING.
SECTIONi5.iiFINDINGS RELATING TO BOUNDARIES. The boundaries and field notes of the district form a closure. If a mistake is made in the field notes or in copying the field notes in the legislative process, the mistake does not in any way affect the district's:
(1)iiorganization, existence, or validity;
(2)iiright to issue any type of bond for a purpose for which the district is created or to pay the principal of and interest on a bond;
(3)iiright to impose or collect an assessment or tax; or
(4)iilegality or operation.
SECTIONi6.iiFINDINGS OF BENEFIT AND PUBLIC PURPOSE. (a)iiThe district is created to serve a public use and benefit. All the land and other property included in the district will be benefited by the improvements and services to be provided by the district under powers conferred by Sections 52 and 52-a, Article III, and Section 59, Article XVI, Texas Constitution, and other powers granted under this Act.
3914 78th Legislature — Regular Session 82nd Day
(b)iiThe creation of the district is in the public interest and is essential to:
(1)iifurther the public purposes of development and diversification of the economy of the state; and
(2)iieliminate unemployment and underemployment and develop or expand transportation and commerce.
(c)iiThe district will:
(1)iipromote the health, safety, and general welfare of residents, employers, employees, visitors, and consumers in the district and the general public;
(2)iiprovide needed funding to preserve, maintain, and enhance the economic health and vitality of the district as a community and business center; and
(3)iifurther promote the health, safety, welfare, and enjoyment of the public by providing pedestrian ways and by landscaping and developing certain areas in the district, which are necessary for the restoration, preservation, and enhancement of scenic beauty.
(d)iiPedestrian ways along or across a street, whether at grade or above or below the surface, and street lighting, street landscaping, and street art objects are parts of and necessary components of a street and are considered to be a street or road improvement.
(e)iiThe district will not act as the agent or instrumentality of any private interest even though many private interests will, as well as the general public, be benefited by the district.
SECTIONi7.iiAPPLICATION OF OTHER LAW. (a)iiExcept as otherwise provided by this Act, Chapter 375, Local Government Code, applies to the district.
(b)iiChapter 311, Government Code, applies to this Act.
SECTIONi8.iiCONSTRUCTION OF ACT. This Act shall be liberally construed in conformity with the findings and purposes stated in this Act.
SECTIONi9.iiBOARD OF DIRECTORS IN GENERAL. (a)iiExcept as provided by Subsection (c), the district is governed by a board of five voting directors appointed under Section 10 and nonvoting directors as provided by Section 11.
(b)iiVoting directors serve staggered terms of four years, with three directors' terms expiring June 1 of an odd-numbered year and two directors' terms expiring Junei1 of the following odd-numbered year.
(c)iiThe board may increase or decrease the number of directors on the board by resolution, provided that it is in the best interest of the district to do so and that the board consists of not fewer than five and not more than 15 directors.
SECTIONi10.iiAPPOINTMENT OF DIRECTORS. The governing body of the City of Galveston shall appoint voting directors to the board.
SECTIONi11.iiNONVOTING DIRECTORS. (a)iiThe following persons serve as nonvoting directors:
(1)iithe directors of the following departments of the City of Galveston or their designees:
(A)iiparks and recreation;
(B)iiplanning and zoning; and
(C)iipublic works; and
(2)iithe city manager of the City of Galveston or the city manager's designee.
Friday, May 30, 2003 SENATE JOURNAL 3915
(b)iiIf an agency, department, or division described by Subsection (a) is consolidated, renamed, or changed, the board may appoint a director of the consolidated, renamed, or changed agency, department, or division as a nonvoting director. If an agency, department, or division described by Subsection (a) is abolished, the board may appoint a representative of another agency, department, or division that performs duties comparable to those performed by the abolished entity.
(c)iiNonvoting directors are not counted for the purposes of establishing a quorum of the board.
SECTIONi12.iiCONFLICTS OF INTEREST; ONE-TIME AFFIDAVIT. (a)iiExcept as provided by this section:
(1)iia director may participate in all board votes and decisions; and
(2)iiChapter 171, Local Government Code, governs conflicts of interest for directors.
(b)iiSection 171.004, Local Government Code, does not apply to the district. A director who has a substantial interest in a business or charitable entity that will receive a pecuniary benefit from a board action shall file a one-time affidavit declaring the interest. An additional affidavit is not required if the director's interest changes. After the affidavit is filed with the board secretary, the director may participate in a discussion or vote on that action if:
(1)iia majority of the directors have a similar interest in the same entity; or
(2)iiall other similar business or charitable entities in the district will receive a similar pecuniary benefit.
(c)iiA director who is also an officer or employee of a public entity may not participate in the discussion of or vote on a matter regarding a contract with that public entity.
(d)iiFor purposes of this section, a director has a substantial interest in a charitable entity in the same manner that a person would have a substantial interest in a business entity under Section 171.002, Local Government Code.
SECTIONi13.iiADDITIONAL POWERS OF DISTRICT. The district may exercise the powers given to:
(1)iia corporation under Section 4B, Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), including the power to own, operate, acquire, construct, lease, improve, and maintain projects described by that section;
(2)iia housing finance corporation created under Chapter 394, Local Government Code, to provide housing or residential development projects in the district;
(3)iientities described in Chapters 441 and 284, Transportation Code, and may exercise those powers as if specifically named therein; and
(4)iidistricts governed by Subchapters E and M, Chapter 60, Water Code, and Section 61.116, Water Code.
SECTIONi14.iiAGREEMENTS; GRANTS. (a)iiThe district may make an agreement with or accept a gift, grant, or loan from any person.
(b)iiThe implementation of a project is a governmental function or service for the purposes of Chapter 791, Government Code.
3916 78th Legislature — Regular Session 82nd Day
SECTIONi15.iiLAW ENFORCEMENT SERVICES. To protect the public interest, the district may contract with Galveston County or the City of Galveston to provide law enforcement services in the district for a fee.
SECTIONi16.iiNONPROFIT CORPORATION. (a)iiThe board by resolution may authorize the creation of a nonprofit corporation to assist and act on behalf of the district in implementing a project or providing a service authorized by this Act.
(b)iiThe board shall appoint the board of directors of a nonprofit corporation created under this section. The board of directors of the nonprofit corporation shall serve in the same manner as the board of directors of a local government corporation created under Chapter 431, Transportation Code.
(c)iiA nonprofit corporation created under this section has the powers of and is considered for purposes of this Act to be a local government corporation created under Chapter 431, Transportation Code.
(d)iiA nonprofit corporation created under this section may implement any project and provide any service authorized by this Act.
SECTIONi17.iiREQUIREMENTS FOR FINANCING SERVICES AND IMPROVEMENTS. The board may not finance a service or improvement project with assessments under this Act unless a written petition requesting that improvement or service has been filed with the board. The petition must be signed by the owners of a majority of the assessed value of real property in the district subject to assessment as determined by the most recent certified tax appraisal roll for Galveston County.
SECTIONi18.iiELECTIONS. (a)iiThe district shall hold an election in the manner provided by Subchapter L, Chapter 375, Local Government Code, to obtain voter approval before the district imposes a maintenance tax or issues a bond payable from ad valorem taxes.
(b)iiThe board may not include more than one purpose in a single proposition at an election.
(c)iiSection 375.243, Local Government Code, does not apply to the district.
SECTIONi19.iiMAINTENANCE TAX. (a)iiIf authorized at an election held in accordance with Section 18, the district may impose an annual ad valorem tax on taxable property in the district for the maintenance and operation of the district and the improvements constructed or acquired by the district or for the provision of services.
(b)iiThe board shall determine the tax rate.
SECTIONi20.iiASSESSMENTS. (a)iiThe board by resolution may impose and collect an assessment for any purpose authorized by this Act.
(b)iiAssessments, including assessments resulting from an addition to or correction of the assessment roll by the district, reassessments, penalties and interest on an assessment or reassessment, expenses of collection, and reasonable attorney's fees incurred by the district:
(1)iiare a first and prior lien against the property assessed;
(2)iiare superior to any other lien or claim other than a lien or claim for county, school district, or municipal ad valorem taxes; and
(3)iiare the personal liability of and charge against the owners of the property even if the owners are not named in the assessment proceedings.
Friday, May 30, 2003 SENATE JOURNAL 3917
(c)iiA lien is effective from the date of the resolution of the board imposing the assessment until the date the assessment is paid. The board may enforce the lien in the same manner that the board may enforce an ad valorem tax lien against real property.
(d)iiWithout necessity of notice and hearing in the manner required for additional assessments, the board may make corrections to or deletions from the assessment roll provided that such corrections or deletions do not increase the amount of assessment of any parcel of land.
SECTIONi21.iiUTILITIES. The district may not impose an impact fee or assessment on the property, equipment, rights of way, facilities, or improvements of an electric utility or a power generation company as defined by Section 31.002, Utilities Code, a gas utility as defined by Section 101.003 or 121.001, Utilities Code, a telecommunications provider as defined by Section 51.002, Utilities Code, or of a person that provides to the public cable television or advanced telecommunications services. If the district, in the exercise of the powers conferred upon it herein, requires or requests the relocation, rerouting, or removal of electric, gas, water, sewer, communications, or other public utilities, as defined in Sections 31.002, 101.003, 121.001, and 51.002, Utilities Code, such relocation, rerouting, or removal shall be at the sole expense of the district.
SECTIONi22.iiBONDS. (a)iiThe district may issue bonds or other obligations payable in whole or in part from ad valorem taxes, assessments, impact fees, revenue, grants, or other money of the district, or any combination of those sources of money, to pay for any authorized purpose of the district.
(b)iiIn exercising the district's borrowing power, the district may issue a bond or other obligation in the form of a bond, note, certificate of participation, or other instrument evidencing a proportionate interest in payments to be made by the district, or other type of obligation.
SECTIONi23.iiMUNICIPALITY NOT REQUIRED TO PAY DISTRICT OBLIGATIONS. Except as provided by Section 375.263, Local Government Code, a municipality is not required to pay a bond, note, or other obligation of the district.
SECTIONi24.iiDISBURSEMENTS OR TRANSFERS OF MONEY. The board by resolution shall establish the number of directors' signatures and the procedure required for a disbursement or transfer of the district's money.
SECTIONi25.iiCOMPETITIVE BIDDING LIMIT. Section 375.221, Local Government Code, applies to the district only for a contract that has a value greater than $15,000.
SECTIONi26.iiEXCEPTION FOR DISSOLUTION OF DISTRICT WITH OUTSTANDING DEBT. (a)iiThe board may vote to dissolve a district that has debt. If the vote is in favor of dissolution, the district shall remain in existence solely for the limited purpose of discharging its debts. The dissolution is effective when all debts have been discharged.
(b)iiSection 375.264, Local Government Code, does not apply to the district.
SECTIONi27.iiINITIAL DIRECTORS. (a)iiThe initial board consists of the following persons:
Pos.iNo.iiiName of Director
1iiiiiiiiiiJohn Sullivan
2iiiiiiiiiiRichard Ryan
3918 78th Legislature — Regular Session 82nd Day
3iiiiiiiiiiJohn Kelso
4iiiiiiiiiiDouglas Harris
5iiiiiiiiiiGlenn Forman, Jr.
(b)iiOf the initial directors, the terms of directors appointed for positions 1 through 3 expire Junei1, 2007, and the terms of directors appointed for positions 4 and 5 expire June 1, 2005.
(c)iiSection 10 does not apply to this section.
(d)iiThis section expires September 1, 2007.
SECTIONi28.iiTAX AND ASSESSMENT ABATEMENTS. Without further authorization or other procedural requirement, the district may grant, consistent with Chapter 312, Tax Code, an abatement for a tax or assessment owed to the district.
SECTIONi29.iiMEMBERSHIP IN CHARITABLE ORGANIZATIONS. The district may join and pay dues to an organization that enjoys tax-exempt status under Section 501(c)(3), (4), or (6), Internal Revenue Code of 1986, as amended, and that performs services or provides activities consistent with the furtherance of the purposes of the district. An expenditure of public money for membership in the organization is considered to further the purposes of the district and to be for a public purpose.
SECTIONi30.iiELIGIBILITY FOR INCLUSION IN SPECIAL ZONES. All or any part of the area of the district is eligible, notwithstanding other statutory criteria, to be included in a tax increment reinvestment zone created by the City of Galveston under Chapter 311, Tax Code, or included in a tax abatement reinvestment zone created by the City of Galveston under Chapter 312, Tax Code. All or any part of the area of the district is also eligible to be included in an enterprise zone created by the City of Galveston under Chapter 2303, Government Code.
SECTIONi31.iiECONOMIC DEVELOPMENT PROGRAMS. The district may establish and provide for the administration of one or more programs, including programs for making loans and grants of public money and providing personnel and services of the district, to promote state or local economic development and to stimulate business and commercial activity in the district. The district has all of the powers and authority of a municipality under Chapter 380, Local Government Code.
SECTIONi32.iiLEGISLATIVE FINDINGS. The legislature finds that:
(1)iiproper and legal notice of the intention to introduce this Act, setting forth the general substance of this Act, has been published as provided by law, and the notice and a copy of this Act have been furnished to all persons, agencies, officials, or entities to which they are required to be furnished by the constitution and laws of this state, including the governor, who has submitted the notice and Act to the Texas Commission on Environmental Quality;
(2)iithe Texas Commission on Environmental Quality has filed its recommendations relating to this Act with the governor, lieutenant governor, and speaker of the house of representatives within the required time;
(3)iithe general law relating to consent by political subdivisions to the creation of districts with conservation, reclamation, and road powers and the inclusion of land in those districts has been complied with; and
(4)iiall requirements of the constitution and laws of this state and the rules and procedures of the legislature with respect to the notice, introduction, and passage of this Act have been fulfilled and accomplished.
Friday, May 30, 2003 SENATE JOURNAL 3919
SECTIONi33.iiEFFECTIVE DATE. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2003.
The amendment was read.
Senator Jackson moved to concur in the House amendment to SBi1912.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 1161 WITH HOUSE AMENDMENT
Senator Barrientos called SBi1161 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Committee Amendment No. 1
Amend SBi1161 as follows:
(1)iiIn Section 1 of the bill, in amended Section 132.007(b), Local Government
Code (engrossed version, page 1, line 16), strike "a service" and substitute "access,
collecting payments, or providing services [a service]".
(2)iiIn Section 1 of the bill, in amended Section 132.007(d), Local Government
Code (engrossed version, page 2, line 4), strike "perform a service" and substitute
"provide access, collect payments, or provide services [perform a service]".
The amendment was read.
Senator Barrientos moved to concur in the House amendment to SBi1161.
The motion prevailed by a viva voce vote.
SENATE BILL 1597 WITH HOUSE AMENDMENTS
Senator Hinojosa called SBi1597 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 1597 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to policies by law enforcement agencies regarding the arrest of persons for certain offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiChapter 14, Code of Criminal Procedure, is amended by adding Article 14.07 to read as follows:
Art.i14.07.iiLAW ENFORCEMENT AGENCY POLICIES ON ARRESTS WITHOUT WARRANT. (a) Each law enforcement agency in this state shall adopt a detailed written policy relating to the arrest of persons without a warrant for misdemeanor offenses, including traffic offenses, that are punishable by fine only.
(b)iiThe policy adopted by the law enforcement agency must:
3920 78th Legislature — Regular Session 82nd Day
(1)iiclearly describe the circumstances in which a peace officer of the law enforcement agency is authorized by the law enforcement agency to make a warrantless custodial arrest of a person for a misdemeanor offense that is punishable by fine only; and
(2)iiprovide for a review of each warrantless custodial arrest of a person for a misdemeanor offense that is punishable by fine only by the immediate supervisor, if any, of the officer making the arrest.
(c)iiArticle 38.23 of this code does not apply to evidence arising out of an arrest made in violation of a policy adopted under Subsection (a) or where an arrest is made in the absence of a policy required to be adopted by this article.
SECTIONi2.iiA law enforcement agency required by Article 14.07, Code of Criminal Procedure, as added by this Act, to adopt an arrest policy shall adopt the policy not later than January 1, 2004.
SECTIONi3.iiThis Act takes effect September 1, 2003.
Floor Amendment No. 1
Amend CSSBi1597 by adding the following appropriately numbered SECTION to the bill and by renumbering existing SECTIONS of the bill accordingly:
SECTIONi____.iiArticle 17.29, Code of Criminal Procedure, is amended by amending Subsection (a) and adding Subsection (e) to read as follows:
(a)iiWhen the accused has given the required bond, either to the magistrate or the officer having him in custody, he shall at once be set at liberty, except as provided by this article.
(e)iiBefore releasing on bail a person arrested for an offense under Chapter 49, Penal Code, the law enforcement agency holding the person shall make a determination that the person is no longer intoxicated as defined by Section 49.01, Penal Code.
The amendments were read.
Senator Hinojosa moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1597 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Hinojosa, Chair; Whitmire, Ellis, Ogden, and Carona.
SENATE BILL 1464 WITH HOUSE AMENDMENT
Senator Lindsay called SBi1464 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.
Friday, May 30, 2003 SENATE JOURNAL 3921
Committee Amendment No. 1
Amend SBi1464 (engrossed version) as follows:
(1)iiIn SECTION 3 of the bill, in proposed Section 284.2031, Transportation Code (page 5, lines 5-6), strike "or liable for an administrative violation under Section 284.208".
(2)iiAfter SECTION 5 of the bill (page 7, between lines 7 and 8), insert the following SECTION:
SECTIONi6.iiSection 284.208, Transportation Code, is amended by adding Subsections (d) and (e) to read as follows:
(d)iiIf a person is found liable under Subsection (a) for a violation of the order, a county may impose, in addition to other costs, $1 as a cost associated with the hearing.
(e)iiMoney collected under Subsection (d) shall be deposited in the county treasury in a special fund to be administered by the county attorney or district attorney. Expenditures from this fund shall be at the sole discretion of the attorney and may be used only to defray the salaries and expenses of the prosecutor's office, but in no event may the county attorney or district attorney supplement his or her own salary from this fund.
(3)iiRenumber the remaining SECTIONS of the bill accordingly.
The amendment was read.
Senator Lindsay moved to concur in the House amendment to SBi1464.
The motion prevailed by a viva voce vote.
CONFERENCE COMMITTEE ON HOUSE BILL 3015
Senator Shapiro called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi3015 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi3015 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Shapiro, Chair; Bivins, Ogden, West, and Duncan.
SENATE BILL 1936 WITH HOUSE AMENDMENT
Senator Ellis called SBi1936 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.
3922 78th Legislature — Regular Session 82nd Day
Amendment
Amend SB 1936 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the Buffalo Bayou Management District; providing the authority to impose taxes and issue bonds.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiCREATION OF DISTRICT. (a) The Buffalo Bayou Management District is a special district created under Section 59, Article XVI, Texas Constitution.
(b)iiThe board by resolution may change the name of the district.
SECTIONi2.iiDEFINITIONS. In this Act:
(1)ii"Board" means the board of directors of the district.
(2)ii"District" means the Buffalo Bayou Management District.
SECTIONi3.iiDECLARATION OF INTENT. (a) The creation of the district is essential to accomplish the purposes of Sections 52 and 52-a, Article III, and Section 59, Article XVI, Texas Constitution, and other public purposes stated in this Act.
(b)iiThe creation of the district is necessary to promote, develop, encourage, and maintain employment, commerce, transportation, housing, tourism, recreation, the arts, entertainment, economic development, safety, and the public welfare in the area of the district.
(c)iiThis Act and the creation of the district may not be interpreted to relieve Harris County or the City of Houston from providing the level of services provided as of the effective date of this Act, to the area in the district. The district is created to supplement and not to supplant the county or city services provided in the area in the district.
(d)iiBy creating the district and in authorizing the City of Houston, Harris County, and other political subdivisions to contract with the district, the legislature has established a program to accomplish the public purposes set out in Section 52-a, Article III, Texas Constitution.
SECTIONi4.iiBOUNDARIES. The district includes all the territory contained in the following described area:
POINT OF BEGINNING at the intersection of the west boundary line of the Houston Downtown Management District and the north boundary of Memorial Drive right-of-way, then west along the north boundary of Memorial Drive right-of-way to the north boundary of Memorial Drive's Heights North exit ramp, then northwest along the north boundary of Memorial Drive's Heights North exit ramp to the east boundary of Heights boulevard right-of-way, then west across Heights Boulevard from the east boundary of Heights Boulevard right-of-way to the west boundary of the Heights Boulevard right-of-way, then south along the west boundary of Heights boulevard right-of-way to the north boundary of Memorial Drive's Memorial West entrance ramp, then southwest along the north boundary of Memorial Drive's Memorial West entrance ramp to the northern boundary line of Memorial Drive right-of-way, then west along the northern boundary line of Memorial Drive right-of-way to the west boundary line of Shepherd Drive right-of-way, then south along the west boundary line of Shepherd Drive right-of-way to the centerline of West Dallas, then east along the centerline of West Dallas to the west boundary of Montrose
Friday, May 30, 2003 SENATE JOURNAL 3923
SECTIONi5.iiFINDINGS RELATING TO BOUNDARIES. The boundaries and field notes of the district form a closure. A mistake in the field notes or in copying the field notes in the legislative process does not in any way affect the district's:
(1)iiorganization, existence, or validity;
(2)iiright to issue any type of bond for a purpose for which the district is created or to pay the principal of and interest on a bond;
(3)iiright to impose or collect an assessment or tax; or
(4)iilegality or operation.
SECTIONi6.iiFINDINGS OF BENEFIT AND PUBLIC PURPOSE. (a) The district is created to serve a public use and benefit.
(b)iiAll land and other property included in the district will benefit from the improvements and services to be provided by the district under powers conferred by Sections 52 and 52-a, Article III, and Section 59, Article XVI, Texas Constitution, and other powers granted under this Act.
(c)iiThe creation of the district is in the public interest and is essential to:
(1)iifurther the public purposes of development and diversification of the economy of the state;
(2)iieliminate unemployment and underemployment; and
(3)iidevelop or expand transportation and commerce.
(d)iiThe district will:
(1)iipromote the health, safety, and general welfare of residents, employers, employees, visitors, and consumers in the district, and of the public;
(2)iiprovide needed funding to preserve, maintain, and enhance the economic health and vitality of the district as a community and business center; and
(3)iipromote the health, safety, welfare, and enjoyment of the public by providing pedestrian ways and by landscaping and developing certain areas in the district, which are necessary for the restoration, preservation, and enhancement of scenic beauty.
(e)iiPedestrian ways along or across a street, whether at grade or above or below the surface, and street lighting, street landscaping, and street art objects are parts of and necessary components of a street and are considered to be a street or road improvement.
(f)iiThe district will not act as the agent or instrumentality of any private interest even though the district will benefit many private interests as well as the public.
SECTIONi7.iiAPPLICATION OF OTHER LAW. (a) Except as otherwise provided by this Act, Chapter 375, Local Government Code, applies to the district.
(b)iiChapter 311, Government Code (Code Construction Act), applies to this Act.
SECTIONi8.iiCONSTRUCTION OF ACT. This Act shall be liberally construed in conformity with the findings and purposes stated in this Act.
3924 78th Legislature — Regular Session 82nd Day
SECTIONi9.iiBOARD OF DIRECTORS IN GENERAL. (a) The district is governed by a board of 14 voting directors appointed under Section 10 and nonvoting directors as provided by Section 11.
(b)iiVoting directors serve staggered terms of four years, with six directors' terms expiring June 1 of an odd-numbered year and eight directors' terms expiring June 1 of the following odd-numbered year.
(c)iiThe board may increase or decrease the number of directors on the board by resolution if the board finds that it is in the best interest of the district. The board may not consist of fewer than five or more than 15 directors.
SECTIONi10.iiAPPOINTMENT OF DIRECTORS. The mayor and members of the governing body of the City of Houston shall appoint voting directors. A person is appointed if a majority of the members of the governing body, including the mayor, vote to appoint that person.
SECTIONi11.iiNONVOTING DIRECTORS. (a) The following persons shall serve as nonvoting directors:
(1)iithe directors of the following departments of the City of Houston or a person designated by that director:
(A)iiparks and recreation;
(B)iiplanning and development;
(C)iipublic works; and
(D)iicivic center; and
(2)iithe City of Houston's chief of police.
(b)iiIf a department described by Subsection (a) is consolidated, renamed, or changed, the board may appoint a director of the consolidated, renamed, or changed department as a nonvoting director. If a department described by Subsection (a) is abolished, the board may appoint a representative of another department that performs duties comparable to those performed by the abolished department.
(c)iiNonvoting directors are not counted for the purposes of establishing a quorum of the board.
SECTIONi12.iiCONFLICTS OF INTEREST; ONE-TIME AFFIDAVIT. (a) Except as provided by this section:
(1)iia voting director may participate in all board votes and decisions; and
(2)iiChapter 171, Local Government Code, governs conflicts of interest for voting directors.
(b)iiSection 171.004, Local Government Code, does not apply to the district. A director who has a substantial interest in a business or charitable entity that will receive a pecuniary benefit from a board action shall file a one-time affidavit declaring the interest. An additional affidavit is not required if the director's interest changes. After the affidavit is filed with the board secretary, the director may participate in a discussion or vote on that action if:
(1)iia majority of the directors have a similar interest in the same entity; or
(2)iiall other similar business or charitable entities in the district will receive a similar pecuniary benefit.
(c)iiA director who is also an officer or employee of a public entity may not participate in the discussion of or vote on a matter regarding a contract with that same public entity.
Friday, May 30, 2003 SENATE JOURNAL 3925
(d)iiFor purposes of this section, a director has a substantial interest in a charitable entity in the same manner that a person would have a substantial interest in a business entity under Section 171.002, Local Government Code.
SECTIONi13.iiADDITIONAL POWERS OF DISTRICT. The district may exercise the powers given to:
(1)iia corporation created under Section 4B, Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), including the power to own, operate, acquire, construct, lease, improve, and maintain projects described by that section; and
(2)iia housing finance corporation created under Chapter 394, Local Government Code, to provide housing or residential development projects in the district.
SECTIONi14.iiAGREEMENTS; GRANTS. (a) The district may make an agreement with or accept a gift, grant, or loan from any person.
(b)iiThe implementation of a project is a governmental function or service for the purposes of Chapter 791, Government Code.
SECTIONi15.iiLAW ENFORCEMENT SERVICES. To protect the public interest, the district may contract with Harris County or the City of Houston to provide law enforcement services in the district for a fee.
SECTIONi16.iiNONPROFIT CORPORATION. (a) The board by resolution may authorize the creation of a nonprofit corporation to assist and act on behalf of the district in implementing a project or providing a service authorized by this Act.
(b)iiThe board shall appoint the board of directors of a nonprofit corporation. The board of directors of the nonprofit corporation shall serve in the same manner as the board of directors of a local government corporation created under Chapter 431, Transportation Code.
(c)iiThe nonprofit corporation:
(1)iihas the powers of and is considered for purposes of this Act to be a local government corporation created under Chapter 431, Transportation Code; and
(2)iimay implement any project and provide any service authorized by this Act.
SECTIONi17.iiREQUIREMENTS FOR FINANCING SERVICES AND IMPROVEMENTS. The board may not finance a service or improvement project with assessments under this Act unless a written petition requesting that improvement or service has been filed with the board. The petition must be signed by the owners of a majority of the assessed value of real property in the district subject to assessment as determined by the most recent certified tax appraisal roll for Harris County.
SECTIONi18.iiELECTIONS. (a) The district shall hold an election in the manner provided by Subchapter L, Chapter 375, Local Government Code, to obtain voter approval before the district imposes a maintenance tax or issues bonds payable from ad valorem taxes.
(b)iiThe board may not submit multiple purposes in a single proposition at an election.
(c)iiSection 375.243, Local Government Code, does not apply to the district.
3926 78th Legislature — Regular Session 82nd Day
SECTIONi19.iiMAINTENANCE TAX. (a) If authorized at an election held in accordance with Section 18, the district may impose an annual ad valorem tax on taxable property in the district for the:
(1)iimaintenance and operation of the district and the improvements constructed or acquired by the district; or
(2)iiprovision of a service.
(b)iiThe board shall determine the tax rate.
SECTIONi20.iiASSESSMENTS. (a) The board by resolution may impose and collect an assessment for any purpose authorized by this Act.
(b)iiAn assessment, a reassessment, or an assessment resulting from an addition to or correction of the assessment roll by the district, penalties and interest on an assessment or reassessment, an expense of collection, and reasonable attorney's fees incurred by the district:
(1)iiare a first and prior lien against the property assessed;
(2)iiare superior to any other lien or claim other than a lien or claim for county, school district, or municipal ad valorem taxes; and
(3)iiare the personal liability of and charge against the owners of the property even if the owners are not named in the assessment proceedings.
(c)iiThe lien is effective from the date of the resolution of the board imposing the assessment until the date the assessment is paid. The board may enforce the lien in the same manner that the board may enforce an ad valorem tax lien against real property.
(d)iiThe board may make corrections to or deletions from the assessment roll without providing notice and holding a hearing in the manner required for additional assessments, if the corrections or deletions do not increase the amount of assessment of any parcel of land.
SECTIONi21.iiUTILITIES. The district may not impose an impact fee or assessment on the property, including the equipment, rights-of-way, facilities, or improvements, of an electric utility or a power generation company as defined by Section 31.002, Utilities Code, or a gas utility as defined by Section 101.003 or 121.001, Utilities Code, or a telecommunications provider as defined by Section 51.002, Utilities Code, or a cable operator as defined by 47 U.S.C. Section 522 and its subsequent amendments.
SECTIONi22.iiBONDS. (a) The district may issue bonds or other obligations payable in whole or in part from ad valorem taxes, assessments, impact fees, revenue, grants, or other money of the district, or any combination of those sources of money, to pay for any authorized purpose of the district.
(b)iiIn exercising the district's borrowing power, the district may issue a bond or other obligation in the form of a bond, note, certificate of participation or other instrument evidencing a proportionate interest in payments to be made by the district, or other type of obligation.
SECTIONi23.iiMUNICIPALITY NOT REQUIRED TO PAY DISTRICT OBLIGATIONS. Except as provided by Section 375.263, Local Government Code, the City of Houston is not required to pay a bond, note, or other obligation of the district.
Friday, May 30, 2003 SENATE JOURNAL 3927
SECTIONi24.iiDISBURSEMENTS OR TRANSFERS OF MONEY. The board by resolution shall establish the number of directors' signatures and the procedure required for a disbursement or transfer of the district's money.
SECTIONi25.iiCOMPETITIVE BIDDING LIMIT. Section 375.221, Local Government Code, applies to the district only for a contract that has a value of more than $15,000.
SECTIONi26.iiEXCEPTION FOR DISSOLUTION OF DISTRICT WITH OUTSTANDING DEBT. (a) The board may vote to dissolve a district that has debt. If the vote is in favor of dissolution, the district shall remain in existence solely for the limited purpose of discharging its debts. The dissolution is effective when all debts have been discharged.
(b)iiSection 375.264, Local Government Code, does not apply to the district.
SECTIONi27.iiTAX AND ASSESSMENT ABATEMENTS. The district may grant in the manner authorized by Chapter 312, Tax Code, an abatement for a tax or assessment owed to the district.
SECTIONi28.iiMEMBERSHIP IN CHARITABLE ORGANIZATIONS. The district may join and pay dues to an organization that:
(1)iienjoys tax-exempt status under Section 501(c)(3), 501(c)(4), or 501(c)(6), Internal Revenue Code of 1986 (26 U.S.C. Section 501(c)), as amended; and
(2)iiperform services or provide activities consistent with the furtherance of the purposes of the district.
SECTIONi29.iiELIGIBILITY FOR INCLUSION IN SPECIAL ZONES. All or any part of the area of the district is eligible to be included in:
(1)iia tax increment reinvestment zone created by the City of Houston under Chapter 311, Tax Code;
(2)iia tax abatement reinvestment zone created by the City of Houston under Chapter 312, Tax Code; or
(3)iian enterprise zone created by the City of Houston under Chapter 2303, Government Code.
SECTIONi30.iiECONOMIC DEVELOPMENT PROGRAMS. The district may establish and provide for the administration of one or more programs, including programs for making loans and grants of public money and providing personnel and services of the district, to promote state or local economic development and to stimulate business and commercial activity in the district. The district has all of the powers and authority of a municipality under Chapter 380, Local Government Code.
SECTIONi31.iiINITIAL DIRECTORS. (a) The initial board consists of the following persons:
| Pos. No. | Name of Director |
| 1 | Kay Crooker |
| 2 | Mike Garver |
| 3 | Gerald Higdon |
| 4 | Marcia Johnson |
| 5 | Susan Keeton |
| 6 | Mark Lee |
| 7 | Maria Munoz-Blanco |
| 8 | Kelley Parker |
3928 78th Legislature — Regular Session 82nd Day
| 9 | Max Schuette |
| 10 | Robert Smith, III |
| 11 | Terri Thomas |
| 12 | William Taylor |
| 13 | William Paul Thomas |
| 14 | Craig Jackson |
(b)iiOf the initial directors, the terms of directors appointed for positions 1 through 6 expire June 1, 2005, and the terms of directors appointed for positions 7 through 14 expire June 1, 2007.
(c)iiSection 10 does not apply to this section.
(d)iiThis section expires September 1, 2007.
SECTIONi32.iiLEGISLATIVE FINDINGS. The legislature finds that:
(1)iiproper and legal notice of the intention to introduce this Act, setting forth the general substance of this Act, has been published as provided by law, and the notice and a copy of this Act have been furnished to all persons, agencies, officials, or entities to which they are required to be furnished by the constitution and laws of this state, including the governor, who has submitted the notice and Act to the Texas Commission on Environmental Quality;
(2)iithe Texas Commission on Environmental Quality has filed its recommendations relating to this Act with the governor, lieutenant governor, and speaker of the house of representatives within the required time;
(3)iithe general law relating to consent by political subdivisions to the creation of districts with conservation, reclamation, and road powers and the inclusion of land in those districts has been complied with; and
(4)iiall requirements of the constitution and laws of this state and the rules and procedures of the legislature with respect to the notice, introduction, and passage of this Act have been fulfilled and accomplished.
SECTIONi33.iiEFFECTIVE DATE. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2003.
The amendment was read.
Senator Ellis moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1936 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Ellis, Chair; Whitmire, Deuell, Lindsay, and Gallegos.
Friday, May 30, 2003 SENATE JOURNAL 3929
SENATE BILL 206 WITH HOUSE AMENDMENTS
Senator Ellis called SBi206 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Floor Amendment No. 1
Amend SB 206 by striking the language beginning on page 6, line 24, "H.J.R.i66 or S.J.R.i13", and substituting "H.J.R.i68".
Floor Amendment No. 2
Amend SB 206 by inserting the following new section and renumbering the subsequent sections accordingly.
Section 1. Sections 41.0021(a) and (e), Education Code, are amended to read as follows:
(a) Notwithstanding Section 41.002, for the [2001-2002, 2002-2003, and]
2003-2004 and 2004-2005 and 2005-2006 school years, a school district that in the
1999-2000 school year did not offer each grade level from kindergarten through 12
may elect to have its wealth per student determined under this section.
(e) This section expires September 1, 2006 [2004].
The amendments were read.
Senator Ellis moved to concur in the House amendments to SBi206.
The motion prevailed by a viva voce vote.
RECESS
On motion of Senator Ellis, the Senate at 1:35ip.m. recessed until 3:30ip.m. today.
AFTER RECESS
The Senate met at 3:30 p.m. and was called to order by Senator Lucio.
HOUSE CONCURRENT RESOLUTION 277
The Presiding Officer laid before the Senate the following resolution:
WHEREAS, SJR 42 has been adopted by the senate and the house of representatives and is being prepared for enrollment; and
WHEREAS, The resolution contains technical errors that should be corrected; now, therefore, be it
RESOLVED by the 78th Legislature of the State of Texas, That the enrolling clerk of the senate be instructed to correct Senate Joint Resolution No. 42, in SECTION 1 of the resolution, by striking Sections 50(a)(6)(M)(ii) and (iii), Article XVI, Texas Constitution, as amended by the Wolens second reading amendment, House Floor Amendment No. 2, and substituting the following:
(ii)iione business day after the date that the owner of the homestead receives a final itemized disclosure of the actual fees, points, interest, costs, and charges that will be charged at closing. If a bona fide emergency or another good
3930 78th Legislature — Regular Session 82nd Day
(iii) [(ii)] the first anniversary of the closing date of any other
extension of credit described by Subsection (a)(6) of this section secured by the same
homestead property, except a refinance described by Paragraph (Q)(x)(f) of this
subdivision;
CARONA
The resolution was read.
On motion of Senator Carona and by unanimous consent, the resolution was considered immediately and was adopted without objection.
(Senator Carona in Chair)
SENATE BILL 1902 WITH HOUSE AMENDMENTS
Senator Lucio called SBi1902 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 1902 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the creation, administration, powers, duties, operation, and financing of the Rio Grande Regional Water Authority and to the powers and duties of the Rio Grande watermaster and the delivery of water down the banks and bed of the Rio Grande; authorizing the issuance of bonds.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLEiI.iiGENERAL PROVISIONS
SECTIONi1.01.iiDEFINITIONS.iiIn this Act:
(1)ii"Authority" means the Rio Grande Regional Water Authority.
(2)ii"Board" means the board of directors of the authority.
(3)ii"Bond" includes a note.
(4)ii"Commission" means the Texas Commission on Environmental Quality.
(5)ii"Director" means a member of the board.
SECTIONi1.02.iiCREATION. (a)iiA conservation and reclamation district, to be known as the Rio Grande Regional Water Authority is created.
(b)iiThe authority is created under and is essential to accomplish the purposes of Section 59, Article XVI, Texas Constitution.
(c)iiThe authority is a governmental agency and a political subdivision of this state.
SECTIONi1.03.iiPURPOSE OF AUTHORITY. The authority is created to supplement, and not to replace, the services, regulatory powers, and authority of irrigation districts, water development supply corporations, counties, municipalities, and other political subdivisions within their respective boundaries and corporate limits.
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SECTIONi1.04.iiFINDING OF BENEFIT AND PUBLIC PURPOSE. (a)iiThe authority is created to serve a public use and benefit.
(b)iiAll of the land and other property included within the boundaries of the authority will be benefited by the improvement projects and the services that are to be accomplished by the authority under powers conferred by Section 59, Article XVI, Texas Constitution, and other powers granted under this Act.
SECTIONi1.05.iiBOUNDARIES. The boundaries of the authority are coextensive with the boundaries of Cameron, Hidalgo, Starr, Webb, Willacy, and Zapata counties, except that the authority does not include the area within the corporate limits of the city of Laredo.
SECTIONi1.06.iiWATER RIGHTS NOT AFFECTED. This Act does not affect any existing rights, or existing priorities in the rights, to water from the source of supply. The formation of a contract for the purchase of water with the authority is not an abandonment or waiver of those rights or priorities and is not an abandonment of the original point of diversion from the source of supply.
SECTIONi1.07.iiAUTHORITY PROHIBITED FROM CONDEMNING WATER RIGHTS.iiThe authority is prohibited from condemning water rights.
ARTICLEiII.iiBOARD OF DIRECTORS
SECTIONi2.01.iiBOARD OF DIRECTORS. (a)iiThe board consists of 15 directors.
(b)iiNine directors are appointed by the governor, with the advice and consent of the senate, as follows:
(1)iisix directors who represent irrigation districts;
(2)iione director who represents independent irrigation water rights holders and holds a certificate of adjudication for at least 500 acre-feet irrigation water rights;
(3)iione director who represents water utilities; and
(4)iione director who represents municipalities.
(c)iiOne director is appointed from each of the six counties in the authority by majority vote of the commissioners court of that county. In January of a year in which a director's term expires, the commissioners court of the appropriate county shall appoint a director for a two-year term beginning February 1 of that year. A director appointed as provided by this subsection must:
(1)iibe a registered voter;
(2)iireside in the county from which the director is appointed; and
(3)iibe certified to the board by the county judge of the county from which the director is appointed.
(d)iiDirectors appointed under Subsection (b) of this section shall be appointed to ensure that at all times:
(1)iiat least one director is a qualified voter of each county in the authority; and
(2)iinot more than three directors are qualified voters of the same county.
(e)iiInitial directors serve until permanent directors are appointed.
(f)iiPermanent directors appointed under Subsection (b) of this section serve staggered four-year terms. Permanent directors appointed under Subsection (c) of this section serve staggered two-year terms.
3932 78th Legislature — Regular Session 82nd Day
(g)iiExcept as provided by Subsection (c), each director must be a qualified voter of the state residing within the boundaries of the authority.
SECTIONi2.02.iiINITIAL DIRECTORS. (a)iiIn appointing the initial directors of the board, the governor shall appoint four directors to terms expiring February 1, 2005, and five directors to terms expiring February 1, 2007.
(b)iiIn appointing the initial directors of the board, the commissioners courts of Webb, Cameron, and Starr counties shall appoint directors to terms expiring Februaryi1, 2004, and the commissioners courts of Hidalgo, Zapata, and Willacy counties shall appoint directors to terms expiring February 1, 2005.
SECTIONi2.03.iiVACANCY. (a)iiThe governor shall fill a vacancy that occurs in the office of a director appointed by the governor.
(b)iiThe commissioners court of a county shall fill a vacancy that occurs in the office of a director appointed from that county.
(c)iiA person appointed to a vacant position serves for the unexpired part of the term.
SECTIONi2.04.iiOATH AND BOND REQUIREMENT FOR DIRECTOR. (a)iiEach director, not later than 15 days after the date of appointment, must qualify by taking the constitutional oath of office and by filing a good and sufficient bond with the secretary of state.
(b)iiThe bond is subject to approval by the secretary of state and must be:
(1)iiin the amount of $1,000;
(2)iipayable to the authority; and
(3)iiconditioned on the faithful performance of the duties as a director.
SECTIONi2.05.iiDIRECTOR COMPENSATION AND REIMBURSEMENT OF EXPENSES. (a)iiA director is not entitled to any compensation for service on the board.
(b)iiA director is entitled to receive reimbursement for actual and necessary expenses incurred in connection with service on the board or attendance at board meetings or other board business.
SECTIONi2.06.iiOFFICERS. (a)iiThe board shall elect from among its members a president, a vice president, and a secretary-treasurer.
(b)iiThe president is the chief executive officer of the authority.
(c)iiThe vice president shall act as president if the president is absent or unable to act.
(d)iiThe secretary-treasurer shall act as secretary of the board. The board shall select a temporary secretary if the secretary-treasurer is absent or unable to act.
SECTIONi2.07.iiMEETINGS. (a)iiThe president shall preside at all meetings of the board.
(b)iiThe board shall set, by order entered in the minutes of its proceedings, a specified time for the regular meetings of the board. The board may meet for a specific occasion if called by order of the president, vice president, or a majority of the directors.
(c)iiThe board shall hold its meetings at its office unless the board directs otherwise for a specific occasion.
SECTIONi2.08.iiEMPLOYEES. The authority may hire employees to obtain any service or material required by the authority.
Friday, May 30, 2003 SENATE JOURNAL 3933
SECTIONi2.09.iiDUTIES OF GENERAL MANAGER. The board may employ a general manager for the authority and may delegate to the general manager full authority to manage and operate the affairs of the authority subject only to the orders of the board.
SECTIONi2.10.iiCOMPENSATION OF EMPLOYEES. The board shall set the reasonable compensation to be paid to the general manager and other employees of the authority.
SECTIONi2.11.iiSURETY BOND. A bond required to be given by a director, officer, or employee of the authority must be executed by a surety company authorized to do business in this state, as surety on the bond.
SECTIONi2.12.iiCONFLICT OF INTEREST. The board shall comply with Chapter 171, Local Government Code, relating to conflicts of interest with a business entity in which a board member has a substantial interest.
SECTIONi2.13.iiREGULAR OFFICE OF AUTHORITY. The board shall establish and maintain a regular office for conducting authority business within the authority's territory.
SECTIONi2.14.iiRECORDS. The secretary-treasurer of the board shall keep a record of all proceedings and orders of the board.
ARTICLEiIII.iiPOWERS AND DUTIES
SECTIONi3.01.iiPOWER UNDER CONSTITUTION AND OTHER LAW. The authority has all of the rights, powers, privileges, authority, functions, and duties, except as limited by this Act, of a conservation and reclamation district under the constitution and other laws of this state, including those:
(1)iiexpressly authorized or implied by Section 59, Article XVI, Texas Constitution, for a conservation and reclamation district; and
(2)iigiven by general law, including Chapters 49, 51, and 54, Water Code.
SECTIONi3.02.iiAD VALOREM TAX PROHIBITED. Notwithstanding Section 3.01 of this Act, the authority may not impose an ad valorem tax.
SECTIONi3.03.iiNONCONTRACTUAL FEES PROHIBITED. Notwithstanding Section 3.01 of this Act, the authority may impose a fee on a public or private entity only if:
(1)iia contractual relationship exists between the authority and the entity; and
(2)iithe authority expressly authorizes the fee.
SECTIONi3.04.iiSTATE SUPERVISION AND APPROVAL. The authority is subject to the commission's continuing supervision under Chapters 5 and 12, Water Code.
SECTIONi3.05.iiADDITIONAL POWERS RELATING TO ACQUISITION OR OPERATION OF PROPERTY. (a)iiIn this section, "property" includes a right, including a water right, land, tenement, easement, improvement, reservoir, dam, canal, lateral, plant, work, and facility.
(b)iiThe authority may investigate, plan, acquire, construct, maintain, or operate any property the authority considers necessary or proper for the accomplishment of the purposes of the authority, including water treatment, wastewater treatment, water conveyance, and desalination of water.
3934 78th Legislature — Regular Session 82nd Day
(c)iiThe power described by Subsection (b) of this section includes the power to acquire property inside or outside the authority that is incidental or helpful to carrying out the authority's purposes under this Act.
SECTIONi3.06.iiADDITIONAL POWERS RELATING TO CONTRACT, LEASE, AGREEMENT, OR CONVEYANCE. (a)iiThe authority may enter into a contract, lease, or other agreement necessary or convenient to carry out a power given to the authority by this Act.
(b)iiThe authority may enter into a contract, lease, or agreement with any person, including:
(1)iian individual or artificial entity;
(2)iia corporation, including a municipal corporation and a public or private corporation; and
(3)iia government or governmental agency, including the United States and this state, or a political subdivision of this state.
(c)iiThe authority may enter into an international cooperation agreement to accomplish the purposes of this Act or any other law as provided by Chapter 792, Government Code.
(d)iiThe authority may:
(1)iiconvey or cause to be conveyed any of its property to the United States;
(2)iienter into a lease, regardless of whether it includes a privilege of purchase, with the United States relating to any property and obligating the authority to pay rent under the lease from the income or other revenue of the property;
(3)iiapply for, accept, receive, and administer gifts, grants, loans, and other funds available from any source; and
(4)iiparticipate with the commission in an action authorized under Section 5.127, Water Code, as added by Chapter 728, Acts of the 77th Legislature, Regular Session, 2001.
(e)iiA contract, lease, or agreement under this section must be approved by resolution of the board.
(f)iiThis section does not authorize the assumption by the authority of any obligation requiring a payment from taxes.
(g)iiThe property to which Subsection (d) of this section applies includes a right, land, tenement, easement, improvement, reservoir, dam, canal, plant, lateral, work, and facility.
SECTIONi3.07.iiCOURT-APPOINTED RECEIVER. The authority may serve as the court-appointed receiver in a matter determined by a court concerning the disposition of assets of any district authorized by Section 59, Article XVI, Texas Constitution.
ARTICLEiIV.iiGENERAL FINANCIAL MATTERS
SECTIONi4.01.iiPROCEDURE FOR PAYMENT. A warrant for the payment of money by the authority may be drawn and signed by the president and the secretary-treasurer if the account under which the payment is to be made results from a contract made by the board and is ordered paid by the board.
SECTIONi4.02.iiRECORDS RELATING TO MONEY. The secretary-treasurer shall:
(1)iireceive and give a receipt for all money received by the authority; and
Friday, May 30, 2003 SENATE JOURNAL 3935
(2)iikeep records of all money received and spent by the authority.
SECTIONi4.03.iiFILING OF AUDIT. In addition to copies of the annual audit of the authority that are filed as required by Section 49.194, Water Code, a copy shall be filed with the depository of the authority and the office of the auditor.
ARTICLEiV.iiBONDS
SECTIONi5.01.iiBOND PROVISIONS. (a)iiFor the purpose of providing funds for purchasing or otherwise providing works, plants, facilities, or appliances necessary to the accomplishment of the purposes authorized by this Act, and for the purpose of carrying out any other power conferred by this Act, the authority may borrow money and issue negotiable bonds.
(b)iiA bond issued under this section may be:
(1)iisold for cash, at a public or private sale, at a price determined by the board;
(2)iiissued on terms determined by the board in exchange for property of any kind or any interest in property that the board determines necessary or convenient for any corporate purpose; or
(3)iiissued to refund bonds issued at any time under this Act.
(c)iiThe issuance of bonds must be authorized by resolution of the board, and the bonds must mature, serially or otherwise, in not more than 50 years from their date of issuance.
(d)iiA resolution authorizing the issuance of bonds may contain provisions that become part of the contract between the authority and the purchasers and subsequent holders of the bonds:
(1)iireserving the right to redeem the bonds at the time or times, in the amounts, and at the prices provided;
(2)iiproviding for the setting aside of sinking funds or reserve funds and the regulation and disposition of those funds;
(3)iipledging, to secure the payment of the principal of and interest on the bonds and the sinking fund or reserve fund payments agreed to be made with respect to the bonds, all or any part of the gross or net revenues subsequently received by the authority with respect to the property to be acquired or constructed with the bonds or with proceeds of the bonds, or all or any part of the gross or net revenues subsequently received by the authority from any source;
(4)iiprescribing the purposes to which the bonds or any bonds later issued, or the proceeds of the bonds, may be applied;
(5)iiagreeing to set and collect rates and charges sufficient to produce revenues that are adequate to pay the items specified in any resolution or resolutions authorizing any bonds, and prescribing the use and disposition of all revenues;
(6)iiprescribing limitations on the issuance of additional bonds and on all agreements that may be made with the purchasers and successive holders of the bonds;
(7)iirelating to the construction, extension, improvement, operation, maintenance, depreciation, replacement, and repair of the properties of the authority and the carrying of insurance on all or any part of the property covering loss or damage or loss of use and occupancy resulting from specified risks;
3936 78th Legislature — Regular Session 82nd Day
(8)iifixing the procedure, if any, by which, if the authority desires, the terms of any contract with the holders of bonds may be amended or abrogated and setting the amount of bonds the holders of which must consent to amendment or abrogation, and the manner in which the consent shall be evidenced;
(9)iiproviding for the execution and delivery by the authority to a bank or trust company authorized by law to accept trusts, or to the United States or any office or agency of the United States, of indentures or agreements authorized to be made with or for the benefit of the holders of the bonds and other provisions that may be contained in the indentures or agreements; or
(10)iimaking any other provisions, not inconsistent with provisions of this Act, that the board may approve.
SECTIONi5.02.iiDEED OF TRUST OR MORTGAGE LIEN. Bonds, within the discretion of the board, may be additionally secured by a deed of trust or mortgage lien on physical properties of the authority, and all franchises, easements, water rights and appropriation permits, leases, contracts, and all rights appurtenant to the properties, vesting in the trustee power to sell the properties for the payment of the indebtedness, power to operate the properties, and all other powers and authority for the further security of the bonds.
SECTIONi5.03.iiELECTION FOR REVENUE BONDS NOT REQUIRED. The authority may issue bonds payable solely from revenues without an election.
SECTIONi5.04.iiLIMITATIONS ON AUTHORITY TO ISSUE BONDS. The authority may not issue bonds or create indebtedness that would in any way be payable from ad valorem taxes levied by the authority on property within the authority.
SECTIONi5.05.iiBONDS EXEMPT FROM TAXATION. Bonds and the interest on bonds issued under this Act are exempt from taxation, except inheritance taxes, by this state or by any municipal corporation, county, or other political subdivision or taxing district of this state.
SECTIONi5.06.iiFULL AUTHORITY. The authority set out in this Act for the authorization and issuance of bonds is in addition to, and not in lieu of, the authority otherwise established under general law and may not be construed as a limitation on, or a modification of, general law providing for authorization and issuance of bonds, notes, and other forms of obligations. Nothing in this Act may be construed as affecting any existing contract, bond, note, or other obligation of the authority or any indenture, covenant, mortgage, or other agreement relating to them.
ARTICLE VI. RIO GRANDE WATERMASTER
SECTIONi6.01.iiSubchapter G, Chapter 11, Water Code, is amended by adding Section 11.3271 to read as follows:
Sec.i11.3271.iiPOWERS AND DUTIES OF RIO GRANDE WATERMASTER; DELIVERY OF WATER DOWN BANKS AND BED OF RIO GRANDE. (a) This section applies only to the watermaster with jurisdiction over the Rio Grande and the water division for which that watermaster is appointed.
(b)iiThe watermaster shall divide the water of the streams or other sources of supply of the division in accordance with the adjudicated water rights.
Friday, May 30, 2003 SENATE JOURNAL 3937
(c)iiThe watermaster shall regulate or cause to be regulated the controlling works of reservoirs and diversion works in time of water shortage, as is necessary because of the rights existing in the streams of the division, or as is necessary to prevent the waste of water or its diversion, taking, storage, or use in excess of the quantities to which the holders of water rights are lawfully entitled.
(d)iiThe watermaster may regulate the distribution of water from any system of works that serves users whose rights have been separately determined.
(e)iiThe watermaster's duties do not include activities that relate to other programs of the commission, except as provided by this section. The watermaster's duties shall include activities that relate to situations of imminent threat to public health and safety or the environment. The commission shall adopt rules:
(1)iidefining situations of imminent threat under this section; and
(2)iiaddressing the watermaster's duties in response to terrorism.
(f)iiThe watermaster may store in a reservoir for release at a later time water in transit that is being conveyed down the banks and bed of the Rio Grande under a permit issued by the commission and in accordance with rules prescribed by the commission. In this section, "water in transit" means privately owned water, not including state water, that a person has pumped from an underground reservoir and that is in transit between the point of discharge into the river and the place of use or the point of diversion by a person who has contracted with the owner of the water to purchase the water. The contract must specify that the contract is for the purchase and delivery of a specified amount of water less the carriage losses incurred in transit, as described and measured according to commission rules.
(g)iiThe watermaster may store water under Subsection (f) only if the storage does not hinder the ability of any other holders of Rio Grande surface water rights to store the maximum authorized capacity in a reservoir as specified by commission rules and relevant permits, certified filings, or certificates of adjudication.
(h)iiBefore granting a permit to convey water down the banks and bed of the Rio Grande, the commission shall adopt rules that provide for the methods and procedures by which the watermaster shall account for any discharge, delivery, conveyance, storage, diversion, or associated loss of water conveyed down the banks and bed of the Rio Grande. A permit to convey water down the banks and bed of the Rio Grande may not allow the permit holder to share in any beneficial state water inflows into the Rio Grande. The permit holder is entitled to convey only the amount of water specified in the permit, less the carriage losses incurred in transit, as described and measured according to commission rules. A rule adopted by the commission under this subsection must be consistent with the Treaty Relating to the Utilization of the Waters of the Colorado and Tijuana Rivers, and of the Rio Grande (Rio Bravo) from Fort Quitman, Texas, to the Gulf of Mexico, concluded by the United States and the United Mexican States on February 3, 1944, and with any minute order adopted by the International Boundary and Water Commission.
(i)iiIn considering an application for a permit to convey water down the banks and bed of the Rio Grande, the commission shall consider the quality of the water to be conveyed. The commission may not issue a permit if it determines that the water to be conveyed would degrade the water quality of the Rio Grande.
3938 78th Legislature — Regular Session 82nd Day
(j)iiNotwithstanding any other law, the watermaster is the official recorder for all instruments, including deeds, deeds of trust, financing statements, security agreements, and liens, that the commission authorizes or requires to be filed in connection with water rights relating to water in the lower, middle, or upper basin of the Rio Grande that are subject to a permit, certified filing, or certificate of adjudication. An instrument shall be filed with the watermaster under this subsection in the same manner as required by other law for the same type of instrument. The filing of an instrument under this subsection results in the same legal and administrative status and consequences as a filing under other law for the same type of instrument. An instrument filed under this subsection shall be construed by a court, financial institution, or other affected person in the same manner as an instrument of the same type that is filed under other law. The watermaster may charge and collect a fee for the recordation of instruments under this subsection in the same amount as the fee collected by the county clerk of Cameron County for the recordation of similar instruments. The commission by rule shall prescribe the procedures necessary for the proper implementation of this subsection, including reasonable transition provisions, if appropriate.
(k)iiThis section does not apply to the Rio Grande above the Fort Quitman Dam.
ARTICLEiVII.iiEFFECTIVE DATE; TRANSITION
SECTIONi7.01.iiEFFECTIVE DATE. This Act takes effect September 1, 2003.
SECTIONi7.02.iiAs soon as practicable after September 1, 2003, the Texas Commission on Environmental Quality shall adopt rules necessary for the implementation of Section 11.3271, Water Code, as added by this Act, and shall expedite any application for a permit for the delivery of water down the banks and bed of the Rio Grande under Section 11.042, Water Code.
Floor Amendment No. 1
Amend CSSB 1902 in SECTION 2.01 by deleting subsection (b)(2) on page 3, lines 7-9 and inserting the following:
"(2) one director who represents the public;"
The amendments were read.
Senator Lucio moved to concur in the House amendments to SBi1902.
The motion prevailed by a viva voce vote.
SENATE BILL 284 WITH HOUSE AMENDMENTS
Senator Lucio called SBi284 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 284 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas State Affordable Housing Corporation.
Friday, May 30, 2003 SENATE JOURNAL 3939
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 1372.0221, Government Code, is amended to read as follows:
Sec.i1372.0221.iiDEDICATION OF PORTION OF STATE CEILING FOR
PROFESSIONAL EDUCATORS [TEACHERS] HOME LOAN PROGRAM. Until
August 1, out [Out] of that portion of the state ceiling that is available exclusively for
reservations by issuers of qualified mortgage bonds under Section 1372.022, $25
million shall be allotted each year and made available exclusively to the Texas State
Affordable Housing Corporation for the purpose of issuing qualified mortgage bonds
in connection with the professional educators [teachers] home loan program
established under Section 2306.562.
SECTIONi2.iiSection 1372.023(b), Government Code, is amended to read as follows:
(b)iiUntil August 1 [15], of that portion of the state ceiling that is available
exclusively for reservations by issuers of qualified residential rental project bonds,
one-fifth [one-fourth] is available exclusively to the Texas Department of Housing
and Community Affairs in the manner described by Section 1372.0231.
SECTIONi3.iiSection 1372.0231, Government Code, is amended by amending Subsection (a) and adding Subsection (b-1) to read as follows:
(a)iiUntil August 1 [15], of that portion of the state ceiling that is available
exclusively for reservations by issuers of qualified residential rental project bonds:
(1)ii20 [25] percent is available exclusively to the Texas Department of
Housing and Community Affairs in the manner described by Subsection (b); [and]
(2)ii70 [75] percent is available exclusively to housing finance corporations
in the manner described by Subsections (c)-(f); and
(3)ii10 percent is available exclusively to the Texas State Affordable Housing Corporation in the manner described by Subsection (b-1).
(b-1)iiWith respect to the amount of the state ceiling set aside under Subsection (a)(3), the board shall issue qualified residential rental project bonds and allocate bond funds at the direction of the Texas State Affordable Housing Corporation as provided by Section 2306.565. Issuances made by the board under this subsection are subject to review and approval by the board under Section 1231.041.
SECTIONi4.iiSection 2306.057, Government Code, is amended by adding Subsection (d) to read as follows:
(d)iiIn assessing the compliance of the project, applicant, or affiliate, the board shall consider any relevant compliance information in the department's database created under Section 2306.081, including compliance information provided to the department by the Texas State Affordable Housing Corporation.
SECTIONi5.iiSection 2306.0721, Government Code, is amended by adding Subsections (g) and (h) to read as follows:
(g)iiThe department shall include the plan developed by the Texas State Affordable Housing Corporation under Section 2306.565 in the department's resource allocation plan under Subsection (c)(5).
3940 78th Legislature — Regular Session 82nd Day
(h)iiThe department shall consider and incorporate the specific results of the programs of the Texas State Affordable Housing Corporation in the department's estimate and analysis of the housing supply in each uniform state service region under Subsection (c)(9).
SECTIONi6.iiSection 2306.0722(b), Government Code, is amended to read as follows:
(b)iiIn preparing the annual report under Section 2306.072 and the state low income housing plan under Section 2306.0721, the director shall:
(1)iicoordinate local, state, and federal housing resources, including tax exempt housing bond financing and low income housing tax credits;
(2)iiset priorities for the available housing resources to help the neediest individuals;
(3)iievaluate the success of publicly supported housing programs;
(4)iisurvey and identify the unmet housing needs of individuals the department is required to assist;
(5)iiensure that housing programs benefit an individual without regard to the individual's race, ethnicity, sex, or national origin;
(6)iidevelop housing opportunities for individuals and families of low and very low income and individuals with special housing needs;
(7)iidevelop housing programs through an open, fair, and public process;
(8)iiset priorities for assistance in a manner that is appropriate and consistent with the housing needs of the populations described by Section 2306.0721(c)(1);
(9)iiincorporate recommendations that are consistent with the consolidated plan submitted annually by the state to the United States Department of Housing and Urban Development;
(10)iiidentify the organizations and individuals consulted by the department in preparing the annual report and state low income housing plan and summarize and incorporate comments and suggestions provided under Subsection (a) as the board determines to be appropriate;
(11)iidevelop a plan to respond to changes in federal funding and programs for the provision of affordable housing;
(12)iiuse the following standardized categories to describe the income of program applicants and beneficiaries:
(A)ii0 to 30 percent of area median income adjusted for family size;
(B)iimore than 30 to 60 percent of area median income adjusted for family size;
(C)iimore than 60 to 80 percent of area median income adjusted for family size;
(D)iimore than 80 to 115 percent of area median income adjusted for family size; or
(E)iimore than 115 percent of area median income adjusted for family
size; [and]
(13)iiuse the most recent census data combined with existing data from local housing and community service providers in the state, including public housing authorities, housing finance corporations, community housing development organizations, and community action agencies; and
Friday, May 30, 2003 SENATE JOURNAL 3941
(14)iiprovide the needs assessment information compiled for the report and plan to the Texas State Affordable Housing Corporation.
SECTIONi7.iiSection 2306.081, Government Code, is amended by amending Subsection (d) and adding Subsection (e) to read as follows:
(d)iiThe department shall create an easily accessible database that contains all project compliance information developed under this chapter, including project compliance information provided to the department by the Texas State Affordable Housing Corporation.
(e)iiThe department shall allow the Texas State Affordable Housing Corporation timely access to the information in the database.
SECTIONi8.iiSection 2306.5521, Government Code, is amended to read as follows:
Sec.i2306.5521.iiSUNSET PROVISION. The Texas State Affordable Housing
Corporation is subject to Chapter 325 (Texas Sunset Act). Unless continued in
existence as provided by that chapter, the corporation is abolished and this subchapter
expires September 1, 2009 [2003].
SECTIONi9.iiSections 2306.553(a) and (b), Government Code, are amended to read as follows:
(a)iiThe public purpose of the corporation is to perform activities and services
that the corporation's board of directors determines will promote the public health,
safety, and welfare through the provision of adequate, safe, and sanitary housing
primarily for individuals and families of low, very low, and extremely low income,
and for professional educators [teachers] under the professional educators [teachers]
home loan program as provided by Section 2306.562. The activities and services shall
include engaging in mortgage banking activities and lending transactions and
acquiring, holding, selling, or leasing real or personal property.
(b)iiThe corporation's primary public purpose is to facilitate the provision of
housing by issuing qualified 501(c)(3) bonds and qualified residential rental project
bonds and by [the] making [of] affordable loans to individuals and families of low,
very low, and extremely low income, and to professional educators [teachers] under
the professional educators [teachers] home loan program. The corporation may make
first lien, single family purchase money mortgage loans for single family homes only
to individuals and families of low, very low, and extremely low income if the
individual's or family's household income is not more than the greater of 60 percent
of the median income for the state, as defined by the United States Department of
Housing and Urban Development, or 60 percent of the area median family income,
adjusted for family size, as defined by that department. The corporation may make
loans for multifamily developments if:
(1)iiat least 40 percent of the units in a multifamily development are affordable to individuals and families with incomes at or below 60 percent of the median family income, adjusted for family size; or
(2)iiat least 20 percent of the units in a multifamily development are affordable to individuals and families with incomes at or below 50 percent of the median family income, adjusted for family size.
SECTIONi10.iiSection 2306.554, Government Code, is amended by amending Subsection (c) and adding Subsection (f) to read as follows:
3942 78th Legislature — Regular Session 82nd Day
(c)iiA member of the corporation's board of directors is not entitled to
compensation, but is entitled to reimbursement of travel expenses incurred by the
member while conducting the business of the board to the same extent[, as] provided
by the General Appropriations Act for a member of a state board.
(f)iiAppointments to the board of directors of the corporation shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
SECTIONi11.iiSubchapter Y, Chapter 2306, Government Code, is amended by adding Sections 2306.5541, 2306.5542, and 2306.5543 to read as follows:
Sec.i2306.5541.iiTERMS OF MEMBERS. The members of the board of directors of the corporation serve staggered six-year terms, with the terms of one or two members expiring on February 1 of each odd-numbered year.
Sec.i2306.5542.iiREMOVAL OF MEMBERS. (a)iiIt is a ground for removal from the board of directors of the corporation that a member:
(1)iidoes not have at the time of taking office the qualifications required by Section 2306.554;
(2)iidoes not maintain during service on the board of directors of the corporation the qualifications required by Section 2306.554;
(3)iiis ineligible for membership under Sections 2306.554 and 2306.5545;
(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 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 of directors.
(b)iiThe validity of an action of the board of directors of the corporation is not affected by the fact that it is taken when a ground for removal of a board member exists.
(c)iiIf the president of the corporation has knowledge that a potential ground for removal exists, the president shall notify the presiding officer of the board of directors 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 president shall notify the next highest ranking officer of the board of directors, who shall then notify the governor and the attorney general that a potential ground for removal exists.
Sec.i2306.5543.iiTRAINING. (a)iiA person who is appointed to and qualifies for office as a member of the corporation's board of directors 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)iithe legislation that created the corporation and the corporation's board of directors;
(2)iithe programs operated by the corporation;
(3)iithe role and functions of the corporation;
(4)iithe rules of the corporation with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5)iithe current budget for the corporation;
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(6)iithe results of the most recent formal audit of the corporation;
(7)iithe requirements of:
(A)iithe open meetings law, Chapter 551;
(B)iithe public information law, Chapter 552;
(C)iithe administrative procedure law, Chapter 2001; and
(D)iiother laws relating to public officials, including conflict-of-interest laws; and
(8)iiany applicable ethics policies adopted by the corporation or the Texas Ethics Commission.
(c)iiA person appointed to the corporation's board of directors is entitled to reimbursement, to the same extent provided by the General Appropriations Act for a member of a state board, 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.
SECTIONi12.iiSection 2306.5545, Government Code, is amended to read as follows:
Sec.i2306.5545.iiCONFLICT OF INTEREST POLICIES. (a)iiThe board of directors of the corporation shall develop and implement policies relating to employee conflicts of interest that are substantially similar to comparable policies that govern state employees.
(b)iiA person may not be a member of the corporation's board of directors and may not be a corporation 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 banking, real estate, housing development, or housing construction; or
(2)iithe person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of banking, real estate, housing development, or housing construction.
(c)iiA person may not be a member of the corporation's board of directors or act as the general counsel to the board of directors or the corporation if the person is required to register as a lobbyist under Chapter 305 because of the person's activities for compensation on behalf of a profession related to the operation of the corporation.
(d)iiIn 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.
SECTIONi13.iiSubchapter Y, Chapter 2306, Government Code, is amended by adding Sections 2306.5546, 2306.5547, and 2306.5548 to read as follows:
Sec.i2306.5546.iiSTANDARDS OF CONDUCT. The president of the corporation or the president's designee shall provide to members of the board of directors of the corporation and to corporation employees, as often as necessary,
3944 78th Legislature — Regular Session 82nd Day
Sec.i2306.5547.iiDIVISION OF RESPONSIBILITY. The board of directors of the corporation shall develop and implement policies that clearly separate the policymaking responsibilities of the board of directors and the management responsibilities of the president and the staff of the corporation.
Sec.i2306.5548.iiEQUAL EMPLOYMENT OPPORTUNITY POLICY. (a)iiThe president of the corporation or the president'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 corporation 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 corporation'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 be:
(1)iiupdated annually; and
(2)iifiled with the governor's office.
SECTIONi14.iiThe heading to Section 2306.562, Government Code, is amended to read as follows:
Sec.i2306.562.iiPROFESSIONAL EDUCATORS [TEACHERS] HOME LOAN
PROGRAM.
SECTIONi15.iiSections 2306.562(a)-(d) and (f), Government Code, are amended to read as follows:
(a)iiIn this section:
(1)ii"Home" means a dwelling in this state in which a professional educator
[teacher] intends to reside as the professional educator's [teacher's] principal
residence.
(2)ii"Mortgage lender" has the meaning assigned by Section 2306.004.
(3)ii"Professional educator" means a classroom teacher, full-time paid teacher's aide, full-time librarian, full-time counselor certified under Subchapter B, Chapter 21, Education Code, or full-time school nurse.
(4)ii"Program" means the professional educators [teachers] home loan
program.
[(4)ii"Teacher" means a person who is a classroom teacher as defined by
Section 5.001, Education Code.]
(b)iiThe corporation shall establish a program to provide eligible professional
educators [teachers] whose income does not exceed 115 percent of area median family
income, adjusted for family size, with low-interest home mortgage loans.
(c)iiTo be eligible for a loan under this section, a professional educator [teacher]
must:
Friday, May 30, 2003 SENATE JOURNAL 3945
(1)ii[have been residing in this state for the five-year period preceding the
date the teacher files an application for a loan under this section;
[(2)iihave been working as a teacher for the three-year period preceding the
application date; and
[(3)]iireside in this state on the application date; and
(2)iibe employed by a school district in this state on the application date.
(d)iiThe corporation may contract with other agencies of the state or with private
entities to determine whether applicants qualify as professional educators [teachers]
under this section or otherwise to administer all or part of this section.
(f)iiThe board of directors of the corporation shall adopt rules governing:
(1)iithe administration of the program;
(2)iithe making of loans under the program;
(3)iithe criteria for approving mortgage lenders;
(4)iithe use of insurance on the loans and the homes financed under the program, as considered appropriate by the board to provide additional security for the loans;
(5)iithe verification of occupancy of the home by the professional educator
[teacher] as the professional educator's [teacher's] principal residence; and
(6)iithe terms of any contract made with any mortgage lender for processing, originating, servicing, or administering the loans.
SECTIONi16.iiSubchapter Y, Chapter 2306, Government Code, is amended by adding Sections 2306.563 through 2306.569 to read as follows:
Sec.i2306.563.iiPUBLIC BENEFIT REQUIREMENT. (a)iiThe corporation shall implement a requirement that a community housing development organization that receives an issuance of qualified 501(c)(3) bonds from the corporation to develop property must invest at least one dollar in projects and services that benefit income-eligible persons for each dollar of taxes that is not imposed on the property as a result of a property tax exemption received under Section 11.182, Tax Code.
(b)iiThe projects and services must benefit income-eligible persons in the county in which the property supported with the tax exemption is located.
(c)iiThe projects and services must consist of:
(1)iirent reduction;
(2)iicapital improvement projects; or
(3)iisocial, educational, or economic development services.
(d)iiThe corporation and the organization may determine on a case-by-case basis the specific projects and services in which the organization must invest under this section.
(e)iiThe dollar-for-dollar public benefit requirement imposed by this section shall be reduced by an amount equal to each dollar that, in lieu of taxes, a community housing development organization pays to a taxing unit for which the property receives an exemption under Section 11.182, Tax Code.
(f)iiIn implementing the public benefit requirement, the corporation shall adopt guidelines for reasonable rent reductions, capital improvement projects, and social, educational, and economic development services.
3946 78th Legislature — Regular Session 82nd Day
Sec.i2306.564.iiREVIEW OF QUALIFIED 501(c)(3) BOND ISSUANCE POLICIES. (a)iiThe corporation shall review annually its qualified 501(c)(3) bond issuance policies, including the public benefit requirement implemented under Section 2306.563.
(b)iiThe corporation shall give to the secretary of state for publication in the Texas Register any proposed policy revisions and allow a reasonable period for public comment.
(c)iiThe board of directors of the corporation must approve any change to the bond issuance policies.
Sec.i2306.565.iiISSUANCE OF QUALIFIED RESIDENTIAL RENTAL PROJECT BONDS; ALLOCATION OF BOND FUNDS. (a) The corporation shall direct the Bond Review Board on the issuance of the portion of state ceiling set aside for the corporation under Section 1372.0231(a).
(b)iiThe board of directors of the corporation shall adopt guidelines governing the method by which the corporation identifies target areas for the allocation of qualified residential rental project bond funds. The guidelines must include a clear demonstration of local need and community support for a housing development.
(c)iiThe corporation shall research the state's strategic housing needs by coordinating with the department and reviewing relevant needs assessment information, as required by Section 2306.566. The corporation shall also solicit information regarding housing needs from local and regional housing organizations.
(d)iiThe board of directors of the corporation shall adopt criteria governing the method by which the corporation solicits proposals for housing developments in areas targeted by the corporation. The guidelines must state the criteria to be included in the corporation's requests for proposals. The requests for proposals must comply with any relevant federal requirements.
(e)iiThe board of directors of the corporation shall adopt criteria governing the method by which the staff of the corporation scores and ranks applications for an allocation under this section that are received in response to a request for proposals. The criteria must include:
(1)iithe cost per unit of the housing development;
(2)iithe proposed rent for a unit; and
(3)iithe income ranges of individuals and families to be served by the housing development.
(f)iiThe board of directors of the corporation shall identify housing developments with respect to which the board anticipates directing the Bond Review Board to allocate bond funds under this section, based on the highest scores received in the scoring and ranking process described by Subsection (e).
(g)iiAfter the board of directors of the corporation has identified housing developments under Subsection (f), the corporation shall hold public hearings, as required by federal law, on the housing developments identified by the board.
(h)iiFollowing the public hearings, the staff shall prepare final evaluations and recommendations for the board, incorporating any public comments received at the hearings. The board shall consider the staff's recommendations in making its final decisions regarding the allocation of bond funds for housing developments under this section and shall inform the Bond Review Board of those decisions.
Friday, May 30, 2003 SENATE JOURNAL 3947
(i)iiThe corporation shall pay the department a reasonable fee for underwriting an application for an allocation of low income housing tax credits if the housing development proposed in the application is or will be supported by an allocation of bond funds under this section.
(j)iiThe decisions made by the corporation regarding the allocation of bond funds under this section are not subject to the restrictions in Section 1372.0321, as added by Chapter 1367 or 1420, Acts of the 77th Legislature, Regular Session, 2001.
Sec.i2306.566.iiCOORDINATION REGARDING STATE LOW INCOME HOUSING PLAN. (a)iiThe corporation shall review the needs assessment information provided to the corporation by the department under Section 2306.0722(b).
(b)iiThe corporation shall develop a plan to meet the state's most pressing housing needs identified in the needs assessment information and provide the plan to the department for incorporation into the state low income housing plan.
(c)iiThe corporation's plan must include specific proposals to help serve rural and other underserved areas of the state.
Sec.i2306.567.iiCOMPLIANCE INFORMATION. (a)iiThe corporation shall provide to the department electronic copies of all compliance information compiled by the corporation.
(b)iiBefore approving an application regarding a housing development, the corporation shall consider any relevant compliance information in the department's database created under Section 2306.081.
Sec.i2306.568.iiRECORD OF COMPLAINTS. (a)iiThe corporation shall maintain a file on each written complaint filed with the corporation. The file must include:
(1)iithe name of the person who filed the complaint;
(2)iithe date the complaint is received by the corporation;
(3)iithe subject matter of the complaint;
(4)iithe name of each person contacted in relation to the complaint;
(5)iia summary of the results of the review or investigation of the complaint; and
(6)iian explanation of the reason the file was closed, if the corporation closed the file without taking action other than to investigate the complaint.
(b)iiThe corporation shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the corporation's policies and procedures relating to complaint investigation and resolution.
(c)iiThe corporation, at least quarterly until final disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation.
Sec.i2306.569.iiEFFECTIVE USE OF TECHNOLOGY. The corporation's board of directors shall develop and implement a policy requiring the president of the corporation and corporation employees to research and propose appropriate technological solutions to improve the corporation's ability to perform its functions. The technological solutions must:
3948 78th Legislature — Regular Session 82nd Day
(1)iiensure that the public is able to easily find information about the corporation on the Internet;
(2)iiensure that persons who want to use the corporation's services are able to:
(A)iiinteract with the corporation 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 corporation's planning processes.
SECTIONi17.iiSection 6, Chapter 1194, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
Sec.i6.iiThe Texas State Affordable Housing Corporation shall[:
[(1)iigive priority to a teacher who resides or teaches in an area of the state
with a teacher shortage, as determined by the commissioner of education;
[(2)]iiaggressively pursue funding for the professional educators [teachers]
home loan program required by Section 2306.562, Government Code[, as added by
this Act; and
[(3)iiimplement the teachers home loan program required by that section not
later than September 1, 2002].
SECTIONi18.ii(a) The change in law made by this Act in amending Chapter 1372, Government Code, applies only to an application for an amount of the state ceiling set aside for issuers of qualified mortgage bonds or qualified residential rental project bonds in a year beginning on or after January 1, 2004. An application for an amount of the state ceiling set aside for issuers of qualified mortgage bonds or qualified residential rental project bonds in 2003 is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.
(b)iiThe offices of the board of directors of the Texas State Affordable Housing Corporation serving immediately before the effective date of this Act are abolished at the time three or more of the newly appointed directors under Subsection (c) of this section qualify for office. The changes in law made by this Act to the qualifications of or prohibitions on members of the board of directors do not affect the entitlement of a member serving immediately before the effective date of this Act to continue to serve as provided by this subsection.
(c)iiThe governor shall make five appointments to the board of directors of the Texas State Affordable Housing Corporation in accordance with Section 2306.554, Government Code, as amended by this Act, as soon as possible on or after the effective date of this Act. In making appointments under this subsection, the governor shall designate:
(1)iione member for a term expiring February 1, 2005;
(2)iitwo members for terms expiring February 1, 2007; and
(3)iitwo members for terms expiring February 1, 2009.
(d)iiA member of the board of directors of the Texas State Affordable Housing Corporation appointed under Subsection (c) of this section is not required to comply with the training requirement prescribed by Section 2306.5543, Government Code, as added by this Act, until September 1, 2004.
Friday, May 30, 2003 SENATE JOURNAL 3949
(e)iiThis Act does not prohibit a person who is a member of the board of directors of the Texas State Affordable Housing Corporation immediately before the effective date of this Act from being appointed as a member of the board of directors on or after the effective date of this Act if the person has the qualifications required for the position under Subchapter Y, Chapter 2306, Government Code, as amended by this Act.
SECTIONi19.iiSection 2306.568, Government Code, as added by this Act, applies only to a complaint filed with the board of directors of the Texas State Affordable Housing Corporation on or after the effective date of this Act, regardless of whether the conduct or act that is the subject of the complaint occurred or was committed before, on, or after the effective date of this Act.
SECTIONi20.iiThis Act takes effect September 1, 2003.
Floor Amendment No. 1
Amend CSSB 284 as follows:
(1) On page 1, line 18, strike "1" and substitute "15".
(2) On page 2, line 3, strike "1" and substitute "15".
The amendments were read.
Senator Lucio moved to concur in the House amendments to SBi284.
The motion prevailed by a viva voce vote.
SENATE BILL 826 WITH HOUSE AMENDMENT
Senator Whitmire called SBi826 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Floor Amendment No. 1 on Third Reading
Amend SB 826, on third reading, by adding the following appropriately numbered SECTIONS to the bill and by renumbering existing SECTIONS of the bill accordingly:
SECTION ____. Chapter 11, Code of Criminal Procedure, is amended by adding Article 11.65 to read as follows:
Art. 11.65. BOND FOR CERTAIN APPLICANTS. (a) This article applies to an applicant for a writ of habeas corpus seeking relief from the judgment in a criminal case, other than an applicant seeking relief from a judgment imposing a penalty of death.
(b) On making proposed findings of fact and conclusions of law jointly stipulated to by the applicant and the state, or on approving proposed findings of fact and conclusions of law made by an attorney or magistrate appointed by the court to perform that duty and jointly stipulated to by the applicant and the state, the convicting court may order the release of the applicant on bond, subject to conditions imposed by the convicting court, until the applicant is denied relief, remanded to custody, or ordered released.
(c) For the purposes of this chapter, an applicant released on bond under this article remains restrained in his liberty.
3950 78th Legislature — Regular Session 82nd Day
(d) Article 44.04(b) does not apply to the release of an applicant on bond under this article.
SECTION ____. Article 11.65, Code of Criminal Procedure, as added by this Act, applies to:
(1) any applicant who on or after the effective date of this Act applies for a writ of habeas corpus; and
(2) any applicant whose application for a writ of habeas corpus is pending on the effective date of this Act, regardless of when the application was filed.
The amendment was read.
Senator Whitmire moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 826 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Whitmire, Chair; Williams, Ratliff, Hinojosa, and Nelson.
SENATE BILL 618 WITH HOUSE AMENDMENTS
Senator Shapleigh called SBi618 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer, Senator Carona in Chair, laid the bill and the House amendments before the Senate.
Amendment
Amend SB 618 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the consequences of a public school's being considered low-performing.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubsection (f), Section 7.056, Education Code, is amended to read as follows:
(f)iiA school district or campus that is required to develop and implement a student achievement improvement plan under Section 39.131 or 39.132 may receive an exemption or waiver under this section from any law or rule other than:
(1)iia prohibition on conduct that constitutes a criminal offense;
(2)iia requirement imposed by federal law or rule;
(3)iia requirement, restriction, or prohibition imposed by state law or rule relating to:
(A)iipublic school accountability as provided by Subchapters B, C, D, and G, Chapter 39; or
Friday, May 30, 2003 SENATE JOURNAL 3951
(B)iieducator rights and benefits under Subchapters A, C, D, E, F, G, and I, Chapter 21, or under Subchapter A, Chapter 22; or
(4)iitextbook selection under Chapter 31.
SECTIONi2.iiSubsection (b), Section 12.013, Education Code, is amended to read as follows:
(b)iiA home-rule school district is subject to:
(1)iia provision of this title establishing a criminal offense;
(2)iia provision of this title relating to limitations on liability; and
(3)iia prohibition, restriction, or requirement, as applicable, imposed by this title or a rule adopted under this title, relating to:
(A)iithe Public Education Information Management System (PEIMS) to the extent necessary to monitor compliance with this subchapter as determined by the commissioner;
(B)iieducator certification under Chapter 21 and educator rights under Sections 21.407, 21.408, and 22.001;
(C)iicriminal history records under Subchapter C, Chapter 22;
(D)iistudent admissions under Section 25.001;
(E)iischool attendance under Sections 25.085, 25.086, and 25.087;
(F)iiinter-district or inter-county transfers of students under Subchapter B, Chapter 25;
(G)iielementary class size limits under Section 25.112, in the case of any
campus in the district that is considered low-performing under Section 39.132
[39.131(b)];
(H)iihigh school graduation under Section 28.025;
(I)iispecial education programs under Subchapter A, Chapter 29;
(J)iibilingual education under Subchapter B, Chapter 29;
(K)iiprekindergarten programs under Subchapter E, Chapter 29;
(L)iisafety provisions relating to the transportation of students under Sections 34.002, 34.003, 34.004, and 34.008;
(M)iicomputation and distribution of state aid under Chapters 31, 42, and 43;
(N)iiextracurricular activities under Section 33.081;
(O)iihealth and safety under Chapter 38;
(P)iipublic school accountability under Subchapters B, C, D, and G, Chapter 39;
(Q)iiequalized wealth under Chapter 41;
(R)iia bond or other obligation or tax rate under Chapters 42, 43, and 45; and
(S)iipurchasing under Chapter 44.
SECTIONi3.iiSubsection (a), Section 29.202, Education Code, is amended to read as follows:
(a)iiA student is eligible to receive a public education grant or to attend another public school in the district in which the student resides under this subchapter if the student is assigned to attend a public school campus:
3952 78th Legislature — Regular Session 82nd Day
(1)iiat which 50 percent or more of the students did not perform satisfactorily on an assessment instrument administered under Section 39.023(a) or (c) in any two of the preceding three years; or
(2)iithat was, at any time in the preceding three years, considered [identified
as] low-performing [by the commissioner] under Section 39.132 [Subchapter D,
Chapter 39].
SECTIONi4.iiSubsection (c), Section 39.072, Education Code, is amended to read as follows:
(c)iiThe agency shall evaluate against state standards and shall, not later than August 1 of each year, report the performance of each campus in a district and each open-enrollment charter school on the basis of the campus's performance on the indicators adopted under Sections 39.051(b)(1) through (7).
SECTIONi5.iiSubchapter G, Chapter 39, Education Code, is amended by amending Section 39.131 and adding Sections 39.132 through 39.138 to read as follows:
Sec.i39.131.iiSANCTIONS FOR DISTRICTS. (a) If a district does not satisfy the accreditation criteria, the commissioner shall take any of the following actions, listed in order of severity, to the extent the commissioner determines necessary:
(1)iiissue public notice of the deficiency to the board of trustees;
(2)iiorder a hearing conducted by the board of trustees of the district for the purpose of notifying the public of the unacceptable performance, the improvements in performance expected by the agency, and the sanctions that may be imposed under this section if the performance does not improve;
(3)iiorder the preparation of a student achievement improvement plan that addresses each academic excellence indicator for which the district's performance is unacceptable, the submission of the plan to the commissioner for approval, and implementation of the plan;
(4)iiorder a hearing to be held before the commissioner or the commissioner's designee at which the president of the board of trustees of the district and the superintendent shall appear and explain the district's low performance, lack of improvement, and plans for improvement;
(5)iiarrange an on-site investigation of the district;
(6)iiappoint an agency monitor to participate in and report to the agency on the activities of the board of trustees or the superintendent;
(7)iiappoint a master to oversee the operations of the district;
(8)iiappoint a management team to direct the operations of the district in areas of unacceptable performance or require the district to obtain certain services under a contract with another person;
(9)iiif a district has been rated as academically unacceptable for a period of one year or more, appoint a board of managers to exercise the powers and duties of the board of trustees; or
(10)iiif a district has been rated as academically unacceptable for a period of two years or more:
(A)iiannex the district to one or more adjoining districts under Section 13.054; or
Friday, May 30, 2003 SENATE JOURNAL 3953
(B)iiin the case of a home-rule school district or open-enrollment charter school, order closure of all programs operated under the district's or school's charter.
(b)i[(a-1)]iiThis subsection applies regardless of whether a district has satisfied
the accreditation criteria. If for a period of one year or more a district has had a master
or management team assigned, the commissioner may appoint a board of managers, a
majority of whom must be residents of the district, to exercise the powers and duties
of the board of trustees.
Sec.i39.132.iiSANCTIONS FOR CAMPUSES. (a)i[(b)]iiIf a campus
performance is below any standard under Section 39.073(b), the campus is considered
a low-performing campus and the commissioner may take any of the following
actions, listed in order of severity, to the extent the commissioner determines
necessary:
(1)iiissue public notice of the deficiency to the board of trustees;
(2)iiorder a hearing conducted by the board of trustees at the campus for the purpose of:
(A)iinotifying the public of the unacceptable performance, the improvements in performance expected by the agency, and the sanctions that may be imposed under this section if the performance does not improve within a designated period of time; and
(B)ii[of] soliciting public comment on the initial steps being taken to
improve performance;
(3)iiorder the preparation of a report regarding the parental involvement program at the campus and a plan describing strategies for improving parental involvement at the campus;
(4)iiorder the preparation of a report regarding the effectiveness of the district- and campus-level planning and decision-making committees established under Subchapter F, Chapter 11, and a plan describing strategies for improving the effectiveness of those committees;
(5)iiorder the preparation of a student achievement improvement plan that addresses each academic excellence indicator for which the campus's performance is unacceptable, the submission of the plan to the commissioner for approval, and implementation of the plan;
(6)iiorder a hearing to be held before the commissioner or the commissioner's designee at which the president of the board of trustees, the superintendent, and the campus principal shall appear and explain the campus's low performance, lack of improvement, and plans for improvement;
(7)iiappoint a special campus intervention team to:
(A)iiconduct a comprehensive on-site evaluation of the [each
low-performing] campus to determine the cause for the campus's low performance
and lack of progress;
(B)iirecommend actions, including reallocation of resources and technical assistance, changes in school procedures or operations, staff development for instructional and administrative staff, intervention for individual administrators or teachers, waivers from state statute or rule, or other actions the team considers appropriate;
3954 78th Legislature — Regular Session 82nd Day
(C)iiassist in the development of a campus plan for student achievement; and
(D)iiassist the commissioner in monitoring the progress of the campus in implementing the campus plan for improvement of student achievement; or
(8)iiif a campus has been a low-performing campus for a period of one year
or more, appoint a board of managers composed of residents of the district to exercise
the powers and duties of the board of trustees of the district in relation to the campus[;
or
[(9)iiif a campus has been a low-performing campus for a period of two
years or more, order closure of the school program on the campus].
(b)iiIf a campus has been a low-performing campus for a period of two consecutive years or more, the commissioner shall reconstitute the campus. In reconstituting the campus, a special campus intervention team shall be assembled for the purpose of deciding which educators may be retained at that campus. If an educator is not retained:
(1)iithe educator's employment with the school district may be terminated under Section 21.157, if applicable; or
(2)iithe educator may be assigned to another position in the district.
Sec.i39.133.iiANNUAL REVIEW. [(c)]iiThe commissioner shall review
annually the performance of a district or campus subject to this subchapter [section] to
determine the appropriate actions to be implemented under this subchapter [section].
The commissioner must review at least annually the performance of a district for
which the accreditation rating has been lowered due to unacceptable student
performance and may not raise the rating until the district has demonstrated improved
student performance. If the review reveals a lack of improvement, the commissioner
shall increase the level of state intervention and sanction unless the commissioner
finds good cause for maintaining the current status.
Sec.i39.134.iiCOSTS PAID BY DISTRICT. [(d)]iiThe costs of providing a
monitor, master, management team, or special campus intervention team shall be paid
by the district. If the district fails or refuses to pay the costs in a timely manner, the
commissioner may:
(1)iipay the costs using amounts withheld from any funds to which the district is otherwise entitled; or
(2)iirecover the amount of the costs in the manner provided for recovery of an overallocation of state funds under Section 42.258.
Sec.i39.135.iiMASTER OR MANAGEMENT TEAM. (a)i[(e)]iiThe
commissioner shall clearly define the powers and duties of a master or management
team appointed to oversee the operations of the district.
(b)iiAt least every 90 days, the commissioner shall review the need for the master or management team and shall remove the master or management team unless the commissioner determines that continued appointment is necessary for effective governance of the district or delivery of instructional services.
(c)iiA master or management team, if directed by the commissioner, shall
prepare a plan for the implementation of action under Section 39.131(a)(9)
[Subsection (a)(9)] or (10). The master or management team:
Friday, May 30, 2003 SENATE JOURNAL 3955
(1)iimay direct an action to be taken by the principal of a campus, the superintendent of the district, or the board of trustees of the district;
(2)iimay approve or disapprove any action of the principal of a campus, the superintendent of the district, or the board of trustees of the district;
(3)iimay not take any action concerning a district election, including ordering or canceling an election or altering the date of or the polling places for an election;
(4)iimay not change the number of or method of selecting the board of trustees;
(5)iimay not set a tax rate for the district; and
(6)iimay not adopt a budget for the district that provides for spending a different amount, exclusive of required debt service, from that previously adopted by the board of trustees.
Sec.i39.136.iiBOARD OF MANAGERS. (a)i[(f)]iiA board of managers may
exercise all of the powers and duties assigned to a board of trustees of a school district
by law, rule, or regulation. This subchapter [section] applies to a district governed by
a board of managers in the same manner that this subchapter [section] applies to any
other district.
(b)iiIf the commissioner appoints a board of managers to govern a district, the powers of the board of trustees of the district are suspended for the period of the appointment and the commissioner shall appoint a district superintendent. Notwithstanding any other provision of this code, the board of managers may amend the budget of the district.
(c)iiIf the commissioner appoints a board of managers to govern a campus, the powers of the board of trustees of the district in relation to the campus are suspended for the period of the appointment and the commissioner shall appoint a campus principal. Notwithstanding any other provision of this code, the board of managers may submit to the commissioner for approval amendments to the budget of the district for the benefit of the campus. If the commissioner approves the amendments, the board of trustees of the district shall adopt the amendments.
(d)iiA master or a member of a management team appointed to serve on a board of managers may continue to be compensated as determined by the commissioner.
(e)iiAt the direction of the commissioner but not later than the second anniversary of the date the board of managers of a district was appointed, the board of managers shall order an election of members of the district board of trustees. The election must be held on a uniform election date on which an election of district trustees may be held under Section 41.001, Election Code, that is at least 180 days after the date the election was ordered. On qualification of members for office, the board of trustees assumes all of the powers and duties assigned to a board of trustees by law, rule, or regulation.
Sec.i39.137.iiSPECIAL CAMPUS INTERVENTION TEAM. [(g)]iiA special
campus intervention team appointed under this subchapter [section] may consist of
teachers, principals, other educational professionals, and superintendents recognized
for excellence in their roles and appointed by the commissioner to serve as members
of a team.
3956 78th Legislature — Regular Session 82nd Day
Sec.i39.138.iiIMMUNITY FROM CIVIL LIABILITY. [(h)iiIf the commissioner
appoints a board of managers to govern a district, the powers of the board of trustees
of the district are suspended for the period of the appointment and the commissioner
shall appoint a district superintendent. Notwithstanding any other provision of this
code, the board of managers may amend the budget of the district.
[(i)iiIf the commissioner appoints a board of managers to govern a campus, the
powers of the board of trustees of the district in relation to the campus are suspended
for the period of the appointment and the commissioner shall appoint a campus
principal. Notwithstanding any other provision of this code, the board of managers
may submit to the commissioner for approval amendments to the budget of the district
for the benefit of the campus. If the commissioner approves the amendments, the
board of trustees of the district shall adopt the amendments.
[(j)]iiAn employee, volunteer, or contractor acting on behalf of the commissioner
under this subchapter is immune from civil liability to the same extent as a
professional employee of a school district under Section 22.051.
SECTIONi6.iiSubsection (c), Section 302.006, Labor Code, is amended to read as follows:
(c)iiTo be eligible to receive a scholarship awarded under this section, a person must:
(1)iibe employed in a child-care facility, as defined by Section 42.002, Human Resources Code;
(2)iiintend to obtain a credential, certificate, or degree specified in Subsection (b);
(3)iiagree to work for at least 18 additional months in a child-care facility, as defined by Section 42.002, Human Resources Code, that accepts federal Child Care Development Fund subsidies and that, at the time the person begins to fulfill the work requirement imposed by this subdivision, is located:
(A)iiwithin the attendance zone of a public school campus considered
low-performing under Section 39.132 [39.131(b)], Education Code; or
(B)iiin an economically disadvantaged community, as determined by the commission; and
(4)iisatisfy any other requirements adopted by the commission.
SECTIONi7.ii(a)iiExcept as provided by Subsection (b) of this section, this Act applies beginning with the 2004-2005 school year.
(b)iiSubsection (b), Section 39.132, Education Code, as added by this Act, applies beginning with the 2005-2006 school year.
SECTIONi8.iiThis Act takes effect Septemberi1, 2003.
Floor Amendment No. 1
Amend CSSB 618 as follows:
(1)iiIn SECTION 5 of the bill, in amended Section 39.131(a)(7), Education Code
(House committee printing, page 5, line 11), strike "master" and substitute
"conservator [master]".
(2)iiIn SECTION 5 of the bill, in added Section 39.131(b), Education Code
(House committee printing, page 6, line 3), strike "master" and substitute "conservator
[master]".
Friday, May 30, 2003 SENATE JOURNAL 3957
(3)iiIn SECTION 5 of the bill, in added Section 39.134, Education Code (House
committee printing, page 9, line 4), strike "master" and substitute "conservator
[master]".
(4)iiIn SECTION 5 of the bill, in the heading to added Section 39.135, Education Code (House committee printing, page 9, line 13), strike "MASTER" and substitute "CONSERVATOR".
(5)iiIn SECTION 5 of the bill, in added Sections 39.135(a), (b), and (c),
Education Code (House committee printing, page 9, lines 14, 18, 19, 22, and 24),
strike "master" each place it appears and substitute "conservator [master]".
(6)iiIn SECTION 5 of the bill, in added Section 39.136(d), Education Code
(House committee printing, page 11, line 9), strike "master" and substitute
"conservator [master]".
Floor Amendment No. 2
Amend CSSB 618 in SECTION 5 of the bill, in added Section 39.132(b), Education Code (House committee printing, page 8, lines 14-18), by striking the semicolon after "retained" and the remainder of the subsection and substituting ", the educator shall be assigned to another position in the district.".
The amendments were read.
Senator Shapleigh moved to concur in the House amendments to SBi618.
The motion prevailed by a viva voce vote.
SENATE BILL 1413 WITH HOUSE AMENDMENTS
Senator Deuell called SBi1413 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Committee Amendment No. 1
Amend engrossed version SB 1413 by adding Section 6. and renumbering accordingly.
Sec. 6. Section 146.021, Agriculture Code, is amended to read as follows:
Section 146.021. DEPARTMENT FACILITIES. The department may receive and hold for processing animals and animal products transported in international trade and may establish and collect reasonable fees for yardage, maintenance, feed, medical care, facility use and other necessary expenses incurred in the course of processing those animals.
Floor Amendment No. 2
Amend SB 1413 in SECTION 1(2) of the bill (committee printing page 1, line 10), between "145," and "and", by inserting "149,".
Floor Amendment No. 3
Amend SB 1413 by adding the following appropriately numbered SECTIONS to the bill and renumbering the subsequent SECTIONS accordingly:
SECTION ____. Section 71.008, Agriculture Code, is amended by adding Subsection (f) to read as follows:
3958 78th Legislature — Regular Session 82nd Day
(f) This section does not restrict the department's authority to establish on its own initiative an eradication program within a quarantined area to protect the state's agricultural resources.
SECTION ____. Subchapter A, Chapter 71, Agriculture Code, is amended by adding Section 71.0092 to read as follows:
Sec. 71.0092. SEIZURE, TREATMENT, HANDLING, AND DESTRUCTION OF CERTAIN MATERIALS WITHIN QUARANTINED AREA. (a) In this section, "quarantined article" means:
(1) a plant, plant product, substance, or other item capable of hosting or facilitating the dissemination of an insect pest or plant disease that is the subject of a quarantine established by the department under this subchapter; or
(2) a motor vehicle, railcar, other conveyance, or equipment used for, or intended for use in, the transportation or production of an item described by Subdivision (1).
(b) The department by rule may establish treatment and handling requirements for a quarantined article found within a quarantined area. The requirements must be designed to:
(1) prevent dissemination of a dangerous insect pest or plant disease outside the quarantined area or into a pest-free area in the state;
(2) prevent infestation of a quarantined article by a dangerous insect pest or plant disease that is subject to a quarantine established by the department under this subchapter;
(3) decrease the occurrence in this state or a quarantined area of this state of a dangerous insect pest or plant disease that is subject to a quarantine established by the department under this subchapter; or
(4) facilitate the eradication of a dangerous insect pest or plant disease that is subject to a quarantine established by the department under this subchapter.
(c) A person in possession or control of a quarantined article located in a quarantined area shall comply with department rules and orders regarding treatment and handling of the quarantined article.
(d) If a person in possession or control of a quarantined article located in a quarantined area fails to comply with a department rule or order under this section, the department may at the expense of the person or of the owner of the article:
(1) seize the quarantined article and, subject to available department resources and Section 71.010:
(A) isolate the article in a manner designed to prevent the dissemination of the dangerous insect pest or plant disease until the article no longer represents a danger of dissemination or until the person agrees to comply with the rule or order;
(B) treat the article to eliminate the danger of dissemination of the dangerous insect pest or plant disease; or
(C) destroy the article; or
(2) seek an injunction from a district court in Travis County ordering the person to:
(A) comply with the department's rule or order; or
(B) surrender possession of the quarantined article to the department for disposition under Subdivision (1).
Friday, May 30, 2003 SENATE JOURNAL 3959
(e) If the owner of a quarantined article seized under this section is unknown to the department, the department shall publish notice that not earlier than the fifth day after the date on which the notice is published or posted the department may destroy, treat, or isolate the quarantined article at the owner's expense. The department must publish the notice for three consecutive days in a newspaper of general circulation in the county in which the quarantined article was seized. The notice must include a description of the quarantined article. If an owner claims the quarantined article before the date described by the notice and agrees in writing to treat or handle the article in a manner provided by department rule or order, the department shall deliver the quarantined article to the owner at the owner's expense. If an owner does not claim the quarantined article before the date described by the notice, the department may destroy or arrange for the destruction of the quarantined article or continue to isolate or treat the quarantined article at the owner's expense. If an owner refuses to agree in writing to comply with the department's rule or order regarding treatment or handling of a quarantined article, the department may destroy or arrange for the destruction of the quarantined article or continue to isolate or treat the quarantined article at the owner's expense, subject to Section 71.010.
(f) In enforcing this section, the department may seek the assistance of the Department of Public Safety under Section 71.0101, or any law enforcement officer of the county in which the quarantined article is located. The Department of Public Safety or local law enforcement officer shall cooperate with the department and provide any assistance necessary to implement this section.
(g) The owner of a quarantined article treated, isolated, or destroyed by the department under this section is liable to the department for the costs of treatment, isolation, and destruction, and the department may bring suit to collect the costs.
(h) The attorney general is entitled to court costs and reasonable attorney's fees in any suit brought on behalf of the department under this section, including any suit for an injunction.
(i) The department may enter into an agreement with a public or private entity to obtain assistance in defraying the cost of implementing this section.
Floor Amendment No. 4
Amend SB 1413 by adding the following appropriately numbered Section to the bill and renumbering the subsequent Sections accordingly:
SECTION ____. Chapter 12, Agriculture Code is amended by adding Section 12.0012 to read as follows:
Section 12.0012 The department shall, upon submission for publication, notify the Department of Public Safety's Division of Emergency Management of each quarantine it adopts. The department shall thereafter cooperate with the Division of Emergency Management in implementing any necessary safeguards to protect the state's agricultural resources from potential economic, health, or ecological disaster that may result from the quarantined pest or disease.
Floor Amendment No. 1 on Third Reading
Amend SB 1413, on third reading, by adding the following appropriately numbered SECTIONS to the bill and renumbering the subsequent SECTIONS accordingly:
3960 78th Legislature — Regular Session 82nd Day
SECTION ____. Section 60.063(c), Agriculture Code, is amended to read as follows:
(c) A [If notice is given at closing, a] purchaser or the purchaser's heirs,
successors, or assigns may not maintain any action for damages or maintain any
action against the seller, title insurance company, real estate brokers, or lienholder, or
any agent, representative, or person acting in their behalf, by reason of the imposition
of fees or assessments by the district authorized by this chapter. Notice is not required
to be given pursuant to this section [paragraph] unless a certified copy of the order
creating the district has been recorded in the real property records in the county in
which the land is located and such order contains the legal description of the district.
A purchaser, seller, lender, real estate broker, title insurance company, and title
insurance agent may conclusively rely on the recorded certified copy of the order.
SECTION ____. SECTION ____, amending Section 60.063(c), Agriculture Code, takes effect only if House Bill 3383, proposed by the 78th Legislature, Regular Session, 2003, relating to agricultural development districts, is passed and becomes law. If that bill does not become law, this section has no effect.
The amendments were read.
Senator Deuell moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1413 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Deuell, Chair; Barrientos, Jackson, Staples, and Madla.
SENATE BILL 1382 WITH HOUSE AMENDMENT
Senator Armbrister called SBi1382 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Floor Amendment No. 1
Amend SB 1382 by adding the following new SECTION 5 to the bill and by renumbering existing SECTION 5 of the bill as SECTION 6 of the bill:
SECTIONi5.iiIf a conflict exists between this Act and another Act of the 78th Legislature, Regular Session, 2003, that amends the Self-Directed Semi-Independent Agency Project Act (Article 8930, Revised Statutes), including an Act that continues a project agency in accordance with Chapter 325, Government Code (Texas Sunset Act), this Act controls without regard to the relative dates of enactment.
The amendment was read.
Friday, May 30, 2003 SENATE JOURNAL 3961
Senator Armbrister moved to concur in the House amendment to SBi1382.
The motion prevailed by a viva voce vote.
SENATE BILL 1633 WITH HOUSE AMENDMENT
Senator Wentworth called SBi1633 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 1633 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the installation and use of a water softener or reverse osmosis system by an owner of an on-site sewage disposal system.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubchapter B, Chapter 366, Health and Safety Code, is amended by adding Section 366.013 to read as follows:
Sec.i366.013.iiINSTALLATION AND USE OF WATER SOFTENERS AND REVERSE OSMOSIS SYSTEMS. (a) Except as provided by Subsection (b), an owner may install or use a water softener that discharges effluent into an on-site sewage disposal system only if the installed water softener:
(1)iiconserves water by design;
(2)iiregenerates using a demand-initiated regeneration control device, commonly known as a DIR device; and
(3)iiis clearly labeled as being equipped with a DIR device, with the label affixed to the outside of the system so that it may be inspected and easily read.
(b)iiAn owner may use a water softener that discharges effluent into an on-site sewage disposal system and that does not meet the requirements of Subsection (a) if the water softener was installed before September 1, 2003. The owner must replace the water softener with a water softener that meets the requirements of Subsection (a) if the owner:
(1)iireplaces the water softener; or
(2)iiinstalls a new on-site sewage disposal system for the building or other property served by the existing system.
(c)iiAn owner may install and use a point-of-use reverse osmosis system that discharges effluent into an on-site sewage disposal system.
(d)iiAn owner may install and use a point-of-entry reverse osmosis system that discharges effluent into an on-site sewage disposal system if the calculated volume of effluent:
(1)iidoes not cause hydraulic overloading; or
(2)iihas been adequately addressed in the design of the on-site sewage disposal system.
(e)iiThis section does not apply to an aerobic, nonstandard, or proprietary on-site sewage treatment system unless the water softener drain line to the system bypasses the treatment system and flows into the pump tank or directly into the discharge method.
3962 78th Legislature — Regular Session 82nd Day
(f)iiThe commission by rule shall adopt and implement standards for the use of water softeners and reverse osmosis systems in a building or other property served by an on-site sewage disposal system.
SECTIONi2.iiThe Texas Commission on Environmental Quality shall adopt rules to implement the standards required by Section 366.013(f), Health and Safety Code, as added by this Act, not later than June 1, 2004.
SECTIONi3.iiThis Act takes effect September 1, 2003.
The amendment was read.
Senator Wentworth moved to concur in the House amendment to SBi1633.
The motion prevailed by a viva voce vote.
SENATE BILL 1165 WITH HOUSE AMENDMENT
Senator Barrientos called SBi1165 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 1165 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to certain fees in Title IV-D cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 231.202, Family Code, is amended to read as follows:
Sec.i231.202.iiAUTHORIZED COSTS AND FEES IN TITLE IV-D CASES. In a Title IV-D case filed under this title, the Title IV-D agency shall pay:
(1)iifiling fees and fees for issuance and service of process as provided by Chapter 110 of this code and by Sections 51.317, 51.318(b)(2), and 51.319(2), Government Code;
(2)iifees for transfer as provided by Chapter 110;
(3)iifees for the issuance and delivery of orders and writs of income withholding in the amounts provided by Chapter 110;
(4)iithe [a] fee that sheriffs and constables are authorized to charge for
serving process under Section 118.131, Local Government Code, [of $45] for each
item of process to each individual on whom service is required, including service by
certified or registered mail, to be paid to a sheriff, constable, or clerk whenever service
of process is required; and
(5)iithe fee for filing an administrative writ of withholding under Section 158.503(d).
SECTIONi2.iiThis Act takes effect September 1, 2003, and applies only to a service of process made on or after that date. A service of process made before the effective date of this Act is governed by the law in effect on the date the service of process is made, and the former law is continued in effect for that purpose.
The amendment was read.
Friday, May 30, 2003 SENATE JOURNAL 3963
Senator Barrientos moved to concur in the House amendment to SBi1165.
The motion prevailed by a viva voce vote.
SENATE BILL 1470 WITH HOUSE AMENDMENT
Senator West called SBi1470 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Committee Amendment No. 1
Amend SB 1470 as follows:
(1) On page 2, line 16, strike "one half" and substitute "one third".
(2) Strike lines 21 on page 2 through line 11 on page 3 and substitute the following:
(f) A [Except as otherwise provided by this subsection, a] student participating
in a program authorized by this section must have taken the [exit-level] assessment
instruments specified by Section [39.025(a)] 39.023(a) for grade 9 before entering the
program and [or] must take each grade level [those] assessment instrument
administered [instruments] during the period [first year] in which the student is
enrolled in the program. [The commissioner may authorize a student to take the
assessment instruments required by Section 39.023(a) to be administered to students
in grade 10 instead of the exit-level assessment instruments.] A student participating
in the program may not take the high school equivalency examination unless the
student has taken the assessment instruments required by this subsection.
The amendment was read.
Senator West moved to concur in the House amendment to SBi1470.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 19 WITH HOUSE AMENDMENTS
Senator Armbrister, on behalf of Senator Ratliff, called SBi19 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 19 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to audit and other related functions of the State Auditor and of certain other state entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 320.001, Government Code, is amended to read as follows:
Sec.i320.001.iiDEFINITION [DEFINITIONS]. In this chapter, "mandate"[:
[(1)ii"Interagency work group" means the unfunded mandates interagency
work group.
3964 78th Legislature — Regular Session 82nd Day
[(2)ii"Mandate"] means a requirement made by a statute enacted by the
legislature on or after January 1, 1997, that requires a political subdivision to
establish, expand, or modify an activity in a way that requires the expenditure of
revenue by the political subdivision that would not have been required in the absence
of the statutory provision.
SECTIONi2.iiSection 321.001, Government Code, is amended to read as follows:
Sec.i321.001.iiDEFINITIONS. In this chapter:
(1)ii"Audit plan" means the outline of work approved by the committee for the State Auditor's Office in a year for the performance of audits and related services, including technical assistance, data analysis, consulting and oversight functions, investigations, and the preparation of audit reports and other types of communications.
(2)ii"Audit working paper" means all documentary and other information prepared or maintained in conducting an audit or investigation, including all intra-agency and interagency communications relating to an audit or investigation and all draft reports or portions thereof.
(3)i[(2)]ii"Committee" means the legislative audit committee.
(4)i[(3)]ii"Department" includes every state department, agency, board,
bureau, institution, or commission.
(5)ii"Risk assessment" means the process by which the State Auditor analyzes risks to the state on the basis of, at a minimum, the following:
(A)iithe identification of problems that can occur in operational or program areas of departments, including institutions of higher education, that are subject to audit by the State Auditor;
(B)iia determination of the potential adverse effects from the problems; and
(C)iia ranking of the risks associated with the problems.
SECTIONi3.iiSubsection (a), Section 321.012, Government Code, is amended to read as follows:
(a)iiThe committee directs and controls the expenditure of any money appropriated to the office of the State Auditor and must approve the State Auditor's appropriation requests and audit plan.
SECTIONi4.iiSection 321.013, Government Code, is amended by amending Subsections (c) and (f) and adding Subsection (j) to read as follows:
(c)iiThe State Auditor shall recommend the audit plan for the state for each
[fiscal] year to the committee. In devising the plan, the State Auditor shall consider
recommendations concerning coordination of agency functions made jointly by
representatives of the Legislative Budget Board, Sunset Advisory Commission, and
State Auditor's Office. The State Auditor shall also consider the extent to which a
department has received a significant increase in appropriations, including a
significant increase in federal or other money passed through to the department, and
shall review procurement activities for compliance with Section 2161.123. The plan
shall provide for auditing of federal programs at least as often as required under
Friday, May 30, 2003 SENATE JOURNAL 3965
(f)iiThe State Auditor may conduct financial audits, compliance audits and
investigations, and, with specific authority from the committee, economy and
efficiency audits, effectiveness audits, and special audits[, and investigations] as
defined by this chapter and specified in the audit plan.
(j)iiIn devising the audit plan under Subsection (c), the State Auditor shall perform risk assessments as required by law. The process of assessing risks to the state is the first stage of auditing, and all records of risk assessment are part of the working papers of the State Auditor. Accordingly, all documentation of risk assessments by the State Auditor is exempt from disclosure under Section 552.116.
SECTIONi5.iiSubsections (b) and (g), Section 321.014, Government Code, are amended to read as follows:
(b)iiThe written report must include [a management letter with] comments about
internal controls, compliance with state or federal laws, and recommendations for
improving financial operations or program effectiveness, as applicable. The report
must also include an opinion on fair presentation of financial statements if the State
Auditor considers an opinion to be necessary.
(g)iiIf a department or entity does not agree with a recommendation contained in
[implement a change recommended by] the state auditor's report, the department or
entity shall file a report with the state auditor and the persons specified by Subsection
(c). The report must:
(1)iiidentify the recommendation with which the department or entity did not
agree [implement]; [and]
(2)iistate the reason the department or entity did not agree with [implement]
the recommendation; and
(3)iistate whether the department or entity intends to implement the recommendation.
SECTIONi6.iiSection 325.008, Government Code, is amended by adding Subsection (c) to read as follows:
(c)iiWork performed under this section by the state auditor is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi7.iiSubsection (b), Section 325.012, Government Code, is amended to read as follows:
(b)iiOn the date the commission presents its report to the legislature under
Section 325.010, the commission shall present to the state auditor the commission's
recommendations that do not require a statutory change to be put into effect. Based on
a risk assessment and subject to the legislative audit committee's approval of
including the examination in the audit plan under Section 321.013, the [The] state
auditor may [shall] examine the recommendations and include[,] as part of the next
approved [scheduled] audit of the agency[, shall prepare] a report on whether the
[manner in which the] agency has implemented the recommendations and, if so, in
what manner.
3966 78th Legislature — Regular Session 82nd Day
SECTIONi8.iiSubsection (d), Section 326.003, Government Code, is amended to read as follows:
(d)iiNot later than one month after the date of a meeting, the [The] committee
shall submit its recommendations in writing to the head of each agency and the
members of the legislative audit committee [not later than one month after the date of
a meeting].
SECTIONi9.iiSection 403.028, Government Code, is amended by amending Subsection (a) and adding Subsection (f) to read as follows:
(a)iiExcept as provided by Subsection (f), the [The] comptroller[, in consultation
with the state auditor's office,] shall conduct a study each biennium to determine:
(1)iithe number and type of potential fraudulent claims for medical or health care benefits submitted:
(A)iiunder the state Medicaid program, including the Medicaid managed care program implemented under Chapter 533; or
(B)iiby or on behalf of a state employee and administered by the attorney general under Chapter 501, Labor Code; and
(2)iithe need for changes to the eligibility system used under the state Medicaid program.
(f)iiThe state auditor, based on a risk assessment and subject to the legislative audit committee's approval of including the state auditor's advisory function in the audit plan under Section 321.013, may advise the comptroller in its conduct of the study required under Subsection (a).
SECTIONi10.iiSubsection (c), Section 403.031, Government Code, is amended to read as follows:
(c)iiThe comptroller, in consultation with the state auditor and the attorney
general, may develop standards and criteria to account for or to reclassify receivables
determined to be uncollectible. The standards and criteria developed by the
comptroller must comply with generally accepted accounting principles as prescribed
or modified by the Governmental Accounting Standards Board or its successors and
must provide proper accounting controls to protect state finances. The [state auditor
and the] attorney general shall review and approve the standards and criteria for
classification of receivables. Receivables may be reclassified as collectible or
uncollectible [according to the process approved by the state auditor or] on a
case-by-case basis as determined or approved by the attorney general [that office].
The classification of receivables as uncollectible under this subsection does not
constitute forgiveness of the debt, and any person indebted to the state remains subject
to Section 403.055.
SECTIONi11.iiSection 403.250, Government Code, is amended to read as follows:
Sec.i403.250.iiDUTIES OF STATE AUDITOR. The state auditor, based on a
risk assessment and subject to the legislative audit committee's approval of including
the audit in the audit plan under Section 321.013, may [shall routinely] audit state
agencies for the proper use of petty cash accounts and promptly report shortages,
abuses, or unwarranted uses of petty cash accounts to the legislature and the
comptroller.
Friday, May 30, 2003 SENATE JOURNAL 3967
SECTIONi12.iiSubsection (b), Section 403.272, Government Code, is amended to read as follows:
(b)iiAll personal property owned by the state shall be accounted for by the
agency that possesses the property. The comptroller shall define personal property by
rule for the purposes of this subchapter. In adopting rules, the comptroller shall
consider the value of the property, its expected useful life, and the cost of
recordkeeping. [The comptroller shall consult with the state auditor in drafting rules.
The state auditor shall cooperate with the comptroller by giving technical assistance
and advice.]
SECTIONi13.iiSubsection (h), Section 403.273, Government Code, is amended to read as follows:
(h)iiThe state auditor, based on a risk assessment and subject to the legislative
audit committee's approval of including the examination in the audit plan under
Section 321.013, may [shall] periodically examine property records or inventory as
necessary to determine if controls are adequate to safeguard state property.
SECTIONi14.iiSubsections (c) and (d), Section 441.185, Government Code, are amended to read as follows:
(c)iiThe state records administrator and the state archivist shall review the schedule and recommend the schedule's approval or disapproval to the director and librarian and the state auditor. The state auditor, based on a risk assessment and subject to theilegislative audit committee's approval of including the review in the audit plan under Section 321.013, may review the schedule.
(d)iiIf the director and librarian, and the state auditor, if the state auditor reviewed the schedule under Subsection (c), approve the schedule, the schedule may be used as the basis for the lawful disposition of state records under Section 441.187 for a period to be determined by the commission.
SECTIONi15.iiSection 441.203, Government Code, is amended by adding Subsection (k) to read as follows:
(k)iiParticipation by the state auditor under Subsection (a) is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi16.iiSubsection (d), Section 445.012, Government Code, is amended to read as follows:
(d)iiThe state auditor, based on a risk assessment and subject to the legislative
audit committee's approval of including the review in the audit plan under Section
321.013, may [shall annually] review the annual report on the fund, and any
information used in preparing the report as the auditor determines necessary, and shall
report any findings or recommendations to the museum and the legislative audit
committee.
SECTIONi17.iiSection 651.007, Government Code, is amended by amending Subsections (b) through (e), (g), and (h) and adding Subsection (j) to read as follows:
(b)iiEach state agency shall conduct an exit interview with an employee who leaves employment with the agency. The state agency shall conduct the exit interview by having the employee access the questionnaire posted on the state auditor's Internet
3968 78th Legislature — Regular Session 82nd Day
(c)iiThe state agency shall conduct the exit interview in a manner that allows the employee alone to describe the employee's reason for leaving employment. The state agency may not alter the description stated by the employee. The state agency may not have access to the questionnaire unless it is provided by the employee under Subsection (b).
(d)iiSubject to Subsection (j), the [The] state auditor shall develop the exit
interview questionnaire. In developing the questionnaire under this subsection, the
state auditor shall consult with the comptroller and representatives designated by the
comptroller from small, medium, and large state agencies.
(e)iiNot later than the 15th day following the end of the calendar quarter, the state auditor shall submit, subject to Subsection (j), a report to each state agency containing the responses to the exit interview questionnaire submitted by each former employee of the agency during the preceding quarter. The state auditor's report may not contain the name of an employee or any other information identifying the employee.
(g)iiThe responses to an exit interview questionnaire are confidential and not subject to disclosure under Chapter 552, including responses to a questionnaire furnished to an entity listed under Subsection (b). The responses may be disclosed only to a law enforcement agency in a criminal investigation or on order of a court.
(h)iiSubject to Subsection (j), the [The] state auditor may audit each state
agency's records to determine whether the agency is complying with the requirements
of this section.
(j)iiWork performed under this section by the state auditor is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi18.iiSection 654.037, Government Code, is amended to read as follows:
Sec.i654.037.iiSALARY STUDIES AND RECOMMENDATIONS. (a)iiThe classification officer shall:
(1)iimake periodic studies of salary rates in other governmental units and in industry for similar work performed in state government; and
(2)iireport the classification officer's findings from the studies made under
Subdivision (1) [and recommendations for adjusting state salary ranges] to the
governor's budget office and the Legislative Budget Board not later than October 1
preceding each regular session of the legislature.
(b)iiThe classification officer shall conduct, before September 1 of each even-numbered year, a survey of local law enforcement departments that employ more than 1,000 commissioned law enforcement officers to gather information about the total compensation provided by the departments to law enforcement officers. Before January 1 of each odd-numbered year, the classification officer shall analyze the findings of the most recent survey conducted in accordance with this subsection and shall submit to the legislature a report on the findings of the survey and analysis.
Friday, May 30, 2003 SENATE JOURNAL 3969
(c)iiTo improve the ability of the state to recruit and retain qualified law enforcement officers, the legislature may consider the report submitted under Subsection (b) in determining the salaries of all state law enforcement officers who hold a position classified under the state employee classification system and are compensated under Salary Schedule C of the General Appropriations Act.
SECTIONi19.iiSection 654.041, Government Code, is amended to read as follows:
Sec.i654.041.iiEXAMINATION FOR COMPLIANCE BY STATE AUDITOR;
REPORTS. The state auditor, subject to a risk assessment and to the Legislative Audit
Committee's approval of including the examination in the audit plan under Section
321.013, may [shall]:
(1)iiexamine or cause to be examined, in periodic postaudits of their expenditures and by methods the auditor considers appropriate and adequate, whether departments and agencies are in compliance with this chapter; and
(2)iireport the findings to the governor, the comptroller, and the Legislative Audit Committee.
SECTIONi20.iiSubsections (b) and (c), Section 660.030, Government Code, are amended to read as follows:
(b)iiThe comptroller [and the state auditor] periodically shall examine the
vouchers and other expense reimbursement forms submitted by a state agency for
payment of a travel expense payable under this chapter to determine compliance with
Section 660.003(e) and:
(1)iiwhether the travel expenses were incurred in the conduct of official state business;
(2)iiwhether the state-business-related activities conducted during the travel were necessary to perform the state business;
(3)iiwhether the travel was necessary to perform the state business conducted; and
(4)iiin a case in which vouchers or other expense reimbursement forms have been submitted for more than one individual for the same or similar travel, whether the number of individuals traveling was necessary to perform the state business.
(c)iiThe comptroller [and the state auditor each] shall develop procedures for
examining travel vouchers and other expense reimbursement forms. [If the
comptroller believes that the criteria prescribed by Subsection (b) have not been
satisfied, the comptroller shall provide that information to the state auditor for review.]
SECTIONi21.iiSection 751.011, Government Code, is amended to read as follows:
Sec.i751.011.iiBOARD DUTIES. [(a)]iiThe board shall review the office's
priorities and strategies set forth in the annual report and deliver to the director any
suggested modifications.
[(b)iiThe board shall review any interagency contract under Section 751.012 and
shall approve a contract only if the contract meets the requirements of that section.]
3970 78th Legislature — Regular Session 82nd Day
SECTIONi22.iiSubsection (d), Section 813.506, Government Code, is amended to read as follows:
(d)iiAs part of the audit of the Texas Department of Criminal Justice by the state
auditor in accordance with Chapter 321, the state auditor may verify the accuracy of
reports submitted to the retirement system under this section. [The state auditor shall
review biennially the standards adopted by the department under Subsection (a).]
SECTIONi23.iiSection 2052.104, Government Code, is amended to read as follows:
Sec.i2052.104.iiSTATE AUDITOR'S POWERS AND DUTIES. (a)iiSubject to
Subsection (c), the [The] state auditor may audit a state agency to ensure:
(1)iithe accuracy of information reported under this subchapter; and
(2)iicompliance with this subchapter.
(b)iiThe state auditor shall:
(1)ii[adopt rules for the manner in which a report must be made under
Section 2052.103;
[(2)]iiprepare annual [quarterly] summary reports from [the] information
provided in the reports filed under Section 2052.103; and
(2)i[(3)]iiprovide copies of the summary reports to:
(A)iithe Legislative Budget Board;
(B)iithe governor; and
(C)iithe comptroller.
(c)iiWork performed under this section by the state auditor is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi24.iiSubsection (a), Section 2054.060, Government Code, is amended to read as follows:
(a)iiA digital signature may be used to authenticate a written electronic
communication sent to a state agency if it complies with rules adopted by the
department. [Before adopting the rules, the department shall consult with the
comptroller, state auditor, attorney general, secretary of state, and office of court
administration, and with representatives of county and municipal governments,
regarding the content of the rules. When adopting the rules, the department shall
consider factors that may affect the reliability of a digital signature, including whether
a digital signature is:
[(1)iiunique to the person using it;
[(2)iicapable of independent verification;
[(3)iiunder the sole control of the person using it; and
[(4)iitransmitted in a manner that will make it infeasible to change the data in
the communication or digital signature without invalidating the digital signature.]
SECTIONi25.iiSubsections (a) and (b), Section 2054.123, Government Code, are amended to read as follows:
(a)iiThe department, in consultation with the Texas Building and Procurement
[General Services] Commission, the state auditor, and the comptroller, shall create an
interagency panel of representatives appointed by those agencies and officers to
coordinate and maintain [develop and establish] a training program to assist state
agencies in performing software audits, managing software, and purchasing software
Friday, May 30, 2003 SENATE JOURNAL 3971
(b)iiThe interagency panel initially shall concentrate on the software purchasing and management needs of the 20 state agencies that have the largest amounts budgeted for expenditures related to software. The 20 state agencies shall send employees, appropriately selected, to attend training programs developed under this section.
SECTIONi26.iiSubsection (b), Section 2054.253, Government Code, as added by Chapter 342, Acts of the 77th Legislature, Regular Session, 2001, is amended to read as follows:
(b)iiWith the approval of the legislative audit committee, a [A] representative of
the state auditor shall advise the authority.
SECTIONi27.iiSection 2055.056, Government Code, is amended to read as follows:
Sec.i2055.056.iiQUALITY ASSURANCE. (a)iiIn coordination with the [state
auditor, the] Legislative Budget Board, [and] the affected state agency, and, subject to
Subsection (b), the state auditor, the office shall provide quality assurance services to
monitor electronic government projects selected under Section 2055.101.
(b)iiParticipation by the state auditor under Subsection (a) is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi28.iiSection 2055.057, Government Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:
(a)iiIn coordination with the comptroller, the Governor's Office of Budget and
Planning, the [state auditor, and] Legislative Budget Board, and, subject to Subsection
(c), the state auditor, the office shall develop a model for funding the office from a
portion of the money appropriated for projects selected under Section 2055.101,
including staff necessary for the office.
(c)iiParticipation by the state auditor under Subsection (a) is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi29.iiSection 2055.101, Government Code, is amended by amending Subsections (a) and (c) and adding Subsection (d) to read as follows:
(a)iiThe office, in coordination with the governor, the [state auditor, and]
Legislative Budget Board, and, subject to Subsection (d), the state auditor, shall
develop selection criteria for the type of electronic government projects that require
direct oversight by the office. The criteria must include:
(1)iiissues related to interagency cooperation and implementation;
(2)iicosts, including reimbursement strategies;
(3)iirequirements for authentication and security implications; and
(4)iithe state's strategic vision regarding electronic government projects.
(c)iiBased on any selection criteria adopted under Subsection (b) and in
coordination with the governor, the [state auditor, and] Legislative Budget Board, and,
subject to Subsection (d), the state auditor, the office may select proposed or existing
electronic government projects.
3972 78th Legislature — Regular Session 82nd Day
(d)iiParticipation by the state auditor under Subsections (a) and (c) is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi30.iiSection 2055.151, Government Code, is amended by adding Subsection (e) to read as follows:
(e)iiParticipation by the state auditor on the committee is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi31.iiSection 2055.153, Government Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:
(a)iiIn coordination with the quality assurance team of the Legislative Budget Board and, subject to Subsection (c), the state auditor, the office shall establish a state agency reporting system that requires state agencies to report to the office on:
(1)iielectronic government projects selected under Section 2055.101 so that the office may effectively monitor those projects; and
(2)iiall other electronic government projects for that agency.
(c)iiParticipation by the state auditor under Subsection (a) is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi32.iiSection 2102.012, Government Code, is amended to read as follows:
Sec.i2102.012.iiPROFESSIONAL DEVELOPMENT. (a)iiSubject to approval
by the legislative audit committee, the [The] state auditor may [shall] make available
and [shall] coordinate a program of training and technical assistance to ensure that
state agency internal auditors have access to current information about internal audit
techniques, policies, and procedures and to provide general technical and audit
assistance to agency internal auditors on request.
(b)iiThe state auditor is entitled to reimbursement for costs associated with providing the services under the terms of interagency cooperation contracts negotiated between the state auditor and each agency. The costs may not exceed those allowed by the General Appropriations Act. Work performed under this section by the state auditor is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi33.iiSection 2104.0215, Government Code, is amended by adding Subsection (e) to read as follows:
(e)iiParticipation by the state auditor under Subsection (a) is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi34.iiSection 2156.004, Government Code, is amended to read as follows:
Sec.i2156.004.iiBID DEPOSIT. (a)iiThe commission, as considered necessary, may require a bid deposit in an amount determined by the commission. The amount of the deposit, if any, must be stated in the public notice and the invitation to bid.
(b)ii[The commission, with the cooperation of the state auditor, shall establish
and maintain a record of each bid deposit and its disposition.
Friday, May 30, 2003 SENATE JOURNAL 3973
[(c)]iiOn the award of a bid or the rejection of all bids, the commission shall
refund the bid deposit of an unsuccessful bidder.
(c)i[(d)]iiThe commission may accept from a bidder a bid deposit in the form of
a blanket bond.
SECTIONi35.iiSubsection (d), Section 2161.123, Government Code, is amended to read as follows:
(d)iiThe commission and the state auditor shall cooperate to develop procedures
providing for random periodic monitoring of [to periodically monitor] state agency
compliance with this section. The state auditor shall report to the commission a state
agency that is not complying with this section. In determining whether a state agency
is making a good faith effort to comply, the state auditor shall consider whether the
agency:
(1)iihas adopted rules under Section 2161.003;
(2)iihas used the commission's directory under Section 2161.064 and other resources to identify historically underutilized businesses that are able and available to contract with the agency;
(3)iimade good faith, timely efforts to contact identified historically underutilized businesses regarding contracting opportunities; and
(4)iiconducted its procurement program in accordance with the good faith effort methodology set out in commission rules.
SECTIONi36.iiSubsection (b), Section 2161.124, Government Code, is amended to read as follows:
(b)iiThe commission[, in cooperation with the state auditor,] shall develop a
standard form for the report.
SECTIONi37.ii Section 2175.061, Government Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:
(b)iiSubject to Subsection (c) [the review and comment of the state auditor], the
commission may prescribe forms and reports necessary to administer this chapter and
may adopt necessary rules, including rules governing the sale or transfer of surplus or
salvage property to state agencies, political subdivisions, or assistance organizations.
(c)iiSubject to a risk assessment and to the legislative audit committee's approval of including the review in the audit plan under Section 321.013, the state auditor may review and comment on the forms and reports prescribed and the rules adopted by the commission under Subsection (b).
SECTIONi38.iiSection 2177.003, Government Code, is amended to read as follows:
Sec.i2177.003.iiCONSULTATION. The commission, at least quarterly, shall consult with the following entities to ensure that the electronic procurement system meets the needs of users of the system:
(1)iithe department;
(2)ii[the state auditor;
[(3)]iigroups, including coordinating councils, created by the commission to
assist with electronic commerce initiatives;
(3)i[(4)]iithe vendor advisory committee established under Section
2155.081; and
(4)i[(5)]iiother state agencies and local governments that use the system.
3974 78th Legislature — Regular Session 82nd Day
SECTIONi39.iiSubsections (a) and (c), Section 2205.004, Government Code, are amended to read as follows:
(a)iiThe board is composed of:
(1)iia member appointed by the governor;
(2)iia member appointed by the lieutenant governor;
(3)iia member appointed by the speaker of the house of representatives; and
(4)iia representative of the Texas Building and Procurement [General
Services] Commission, designated from time to time by the presiding officer of the
commission[; and
[(5)iia representative of the state auditor's office, designated from time to
time by the state auditor].
(c)iiThe representative [representatives] of the Texas Building and Procurement
[General Services] Commission is an [and the state auditor's office are] ex officio,
nonvoting member [members] of the board and serves [serve] only in an advisory
capacity.
SECTIONi40.iiSubsection (n), Section 2256.005, Government Code, is amended to read as follows:
(n)iiExcept as provided by Subsection (o), at least once every two years a state
agency shall arrange for a compliance audit of management controls on investments
and adherence to the agency's established investment policies. The compliance audit
shall be performed by the agency's internal auditor or by a private auditor employed
in the manner provided by Section 321.020. Not later than Januaryi1 of each
even-numbered year[,] a state agency shall report the results of the most recent audit
performed under this subsection to the state auditor. Subject to a risk assessment and
to the legislative audit committee's approval of including a review by the state auditor
in the audit plan under Section 321.013, the state auditor may review information
provided under this section. If review by the state auditor is approved by the
legislative audit committee, the state auditor may, based on its review, require a [A]
state agency to also [shall] report to the state auditor other information the state
auditor determines necessary to assess compliance with laws and policies applicable
to state agency investments. A report under this subsection shall be prepared in a
manner the state auditor prescribes.
SECTIONi41.iiSection 2256.022, Government Code, is amended to read as follows:
Sec.i2256.022.iiEXPANSION OF INVESTMENT AUTHORITY. Expansion of investment authority granted by this chapter shall require a risk assessment by the state auditor or performed at the direction of the state auditor, subject to the legislative audit committee's approval of including the review in the audit plan under Section 321.013.
SECTIONi42.iiSection 2261.203, Government Code, is amended to read as follows:
Sec.i2261.203.iiCOMPARABLE COSTS. [(a)]iiEach state agency that makes
procurements to which this chapter applies shall monitor performance under a
contract to verify that comparable costs are being charged for comparable goods and
services.
Friday, May 30, 2003 SENATE JOURNAL 3975
[(b)iiThe state auditor on request shall assist a state agency's monitoring efforts
under this section.]
SECTIONi43.iiSubchapter A, Chapter 2262, Government Code, is amended by adding Section 2262.003 to read as follows:
Sec.i2262.003.iiREQUIRED CONTRACT PROVISION RELATING TO AUDITING. (a)iiEach state agency shall include in each of its contracts a term that provides that:
(1)iithe state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract; and
(2)iiacceptance of funds directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds.
(b)iiThe state auditor shall provide assistance to a state agency in developing the contract provisions.
SECTIONi44.iiSubsection (a), Section 2262.051, Government Code, is amended to read as follows:
(a)iiIn consultation with the Texas Building and Procurement Commission, the Department of Information Resources, the comptroller, and the state auditor, the attorney general shall develop and periodically update a contract management guide for use by state agencies. Participation by the state auditor under this subsection is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c).
SECTIONi45.iiSubsection (b), Section 2262.052, Government Code, is amended to read as follows:
(b)iiSubject to the legislative audit committee's approval of including the work
described by this subsection in the audit plan under Section 321.013(c), the [The] state
auditor may [shall]:
(1)iiperiodically monitor compliance with this section;
(2)iireport any noncompliance to:
(A)iithe governor;
(B)iithe lieutenant governor;
(C)iithe speaker of the house of representatives; and
(D)iithe team; and
(3)iiassist, in coordination with the attorney general and the comptroller, a noncomplying state agency to comply with this section.
SECTIONi46.iiSection 2262.053, Government Code, is amended by adding Subsection (d) to read as follows:
(d)iiThe Texas Building and Procurement Commission shall administer the training program under this section.
SECTIONi47.iiSubsection (a), Section 2306.074, Government Code, is amended to read as follows:
(a)iiThe [state auditor or a certified public accountant shall audit the]
department's books and accounts must be audited each fiscal year by a certified public
accountant or, if requested by the department and if the legislative audit committee
3976 78th Legislature — Regular Session 82nd Day
SECTIONi48.iiSubsection (b), Section 16.142, Water Code, is amended to read as follows:
(b)iiThe board by rule shall set the fee at an amount it considers necessary to
recover the costs incurred or to be incurred by the board in administering the project
over its life, including the costs of processing an application, monitoring construction,
and auditing and monitoring the project. The state auditor may [shall] review fees
charged by the board to determine whether the fees are set consistent with this
subsection, based on a risk assessment performed by the state auditor and subject to
the legislative audit committee's approval of including the review in the audit plan
under Section 321.013, Government Code.
SECTIONi49.iiSubsection (b), Section 20.020, Water Code, is amended to read as follows:
(b)iiThe [board shall have an audit made by the] state auditor may audit [or by a
certified public accountant of] the authority's books and accounts, based on a risk
assessment performed by the state auditor and subject to the legislative audit
committee's approval of including the audit in the audit plan under Section 321.013,
Government Code [for each fiscal year]. The cost of an [the] audit shall be paid by the
authority.
SECTIONi50.iiSubsection (b), Section 36.061, Water Code, is amended to read as follows:
(b)iiThe state auditor may audit the records [financial transactions] of any district
if the state auditor determines that the audit is necessary.
SECTIONi51.iiSection 36.153, Water Code, is amended by amending Subsection (a) and adding Subsections (c) and (d) to read as follows:
(a)iiAnnually and subject to Subsection (c), the board shall have an audit made of the financial condition of the district.
(c)iiThe district is exempt from the requirement under Subsection (a) if it had:
(1)iinot more than $500 in receipts from operations, tax assessments, loans, contributions, or any other sources during the calendar year;
(2)iinot more than $500 in disbursements of funds during the calendar year;
(3)iino bonds or other liabilities with terms of more than one year outstanding during the calendar year; and
(4)iino cash or investments amounting to more than $5,000 at any time during the calendar year.
(d)iiA financially dormant district may elect to submit to the executive director a financial dormancy affidavit instead of complying with the audit requirements of Section 49.191.
SECTIONi52.iiSubsections (b), (c), and (d), Section 36.302, Water Code, are amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3977
(b)iiThe commission, the Texas Water Development Board, and the Parks and
Wildlife Department shall provide technical assistance to the state auditor's office for
a [the] review performed under Subsection (a).
(c)iiIn a review performed under Subsection (a), the [The] state auditor shall
make a determination of whether a district is actively engaged in achieving the
objectives of the district's management plan based on an analysis [audit] of the
district's activities [performance under the plan].
(d)iiThe state auditor may perform the review under Subsection (a) [shall
conduct such audits] following the first anniversary of the initial certification of the
plan by the Texas Water Development Board under Section 36.1072 and at least as
often as once every seven years after that date, subject to a risk assessment and to the
legislative audit committee's approval of including the review in the audit plan under
Section 321.013, Government Code [following the end of every five-year period
thereafter].
SECTIONi53.iiSection 49.195, Water Code, is amended by amending Subsection (b) and adding Subsection (f) to read as follows:
(b)iiSubject to Subsection (f), the [The] commission may request that the state
auditor assist in the establishment of standards and procedures for review of district
audits by the executive director.
(f)iiParticipation by the state auditor under Subsection (b) is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c), Government Code.
SECTIONi54.iiSubsection (b), Section 152.203, Water Code, is amended to read as follows:
(b)iiThe river authority shall:
(1)iimaintain the appraisal on file as a public record; and
(2)iifile a copy of the appraisal with the Texas Commission on
Environmental Quality [state auditor].
SECTIONi55.iiSubsection (h), Section 22.004, Education Code, is amended to read as follows:
(h)iiAn audited financial statement provided under this section must be made in
accordance with rules adopted by the commissioner of insurance or with generally
accepted accounting principles [state auditor], as applicable.
SECTIONi56.iiSubsection (q), Section 42.152, Education Code, is amended to read as follows:
(q)iiThe State Board of Education, with the assistance of the [state auditor and
the] comptroller, shall develop and implement by rule a reporting and auditing system
for district and campus expenditures of compensatory education funds to ensure that
compensatory education funds, other than the indirect cost allotment, are spent only to
supplement the regular program. The commissioner, in the year following an audit of
compensatory education expenditures, shall withhold from a district's foundation
school fund payment an amount equal to the amount of compensatory education funds
the agency determines were not used in compliance with Subsection (c). The
commissioner shall release to a district funds withheld under this subsection when the
district provides to the commissioner a detailed plan to spend those funds in
compliance with Subsection (c).
3978 78th Legislature — Regular Session 82nd Day
SECTIONi57.iiSubsection (e), Section 43.006, Education Code, is amended to read as follows:
(e)iiIf an investment contract entered into under Subsection (b) includes the
permanent school fund within the scope of funds under the control and management
of the State Board of Education to be invested by the corporation, the board shall
provide for an annual financial audit of the permanent school fund. Subject to the
legislative audit committee's approval of including the audit in the audit plan under
Section 321.013(c), Government Code, the [The] audit shall be performed by the state
auditor.
SECTIONi58.iiSection 102.52, Education Code, is amended to read as follows:
Sec.i102.52.iiTRANSFER OF MONEY; DISBURSEMENTS. All money so
received shall be transferred as soon as available to the West Texas State University
Foundation or to any other fund or foundation chosen by agreement between the
donors and the administration of the university. The disbursement of all this money is
under the supervision of the business manager of the university[, subject to accounting
procedures approved by the state auditor].
SECTIONi59.iiSubsection (c), Section 130.0035, Education Code, is amended to read as follows:
(c)iiThe Legislative Budget Board shall be responsible for recommending
[develop recommended] standards for reports under this section, in consultation with
junior college districts, the Texas Higher Education Coordinating Board, and the
governor's office of budget and planning[, and the state auditor].
SECTIONi60.iiSubsection (a), Section 21.455, Labor Code, is amended to read as follows:
(a)iiA state agency shall reimburse the commission through interagency contract
for the reasonable and necessary expenses incurred by the commission in conducting
a review under Section 21.453. [The actual expenses incurred by the commission shall
be determined by the state auditor's office.]
SECTIONi61.iiSubsection (e), Section 21.556, Labor Code, is amended to read as follows:
(e)iiAn agency required to participate in a program under this section shall pay
the cost of attending the program or shall reimburse the commission or state agency
providing the program through interagency contract. The cost of providing the
program shall be determined and approved by the commission or state agency [in
cooperation with the state auditor's office]. The state auditor may audit the
commission's expenditure of fees collected under this section based on a risk
assessment performed by the state auditor and subject to the approval by the
legislative audit committee of including the audit in the audit plan under Section
321.013, Government Code.
SECTIONi62.iiSubsection (d), Section 205.019, Labor Code, is amended to read as follows:
(d)iiThe state auditor may [shall] review the reimbursement of funds [affected
entities] for compliance by the affected entities with this section, subject to a risk
assessment performed by the state auditor and to the legislative audit committee's
approval of including the review in the audit plan under Section 321.013, Government
Code.
Friday, May 30, 2003 SENATE JOURNAL 3979
SECTIONi63.iiSubsection (d), Section 506.002, Labor Code, is amended to read as follows:
(d)iiThe state auditor may [shall] review affected entities for compliance with
this section, subject to a risk assessment performed by the state auditor and to the
legislative audit committee's approval of including the review in the audit plan under
Section 321.013, Government Code.
SECTIONi64.iiSubsection (a), Section 140.007, Local Government Code, is amended to read as follows:
(a)iiTo assist counties, [the state auditor in consultation with] the comptroller of
public accounts may develop, promulgate, and widely distribute forms, with
instruction, for cost accounting for public improvements. The [auditor and the]
comptroller shall consult with large and small governmental entities and the
construction industry prior to the promulgation of the forms and instructions.
SECTIONi65.iiSubsection (e), Section 391.0095, Local Government Code, is amended to read as follows:
(e)iiA commission shall send to the state auditor, the comptroller, and the
Legislative Budget Board a copy of each report and audit required under this section
or under Section 391.009. The state auditor may [shall] review each audit and report,
subject to a risk assessment performed by the state auditor and to the legislative audit
committee's approval of including the review in the audit plan under Section 321.013,
Government Code. If the state auditor reviews the audit report, the state auditor [and]
must be given access to working papers and other supporting documentation that the
state auditor determines is necessary to perform the review. If the state auditor finds
significant issues involving the administration or operation of a commission or its
programs, the state auditor shall report its findings and related recommendations to the
legislative audit committee, the governor, and the commission. The governor and the
legislative audit committee may direct the commission to prepare a corrective action
plan or other response to the state auditor's findings or recommendations. The
legislative audit committee may direct the state auditor to perform any additional audit
or investigative work that the committee determines is necessary.
SECTIONi66.iiSubsection (b), Section 11.017, Health and Safety Code, is amended to read as follows:
(b)iiThe state auditor may [shall] audit the financial transactions of the board in
accordance with Chapter 321, Government Code, subject to a risk assessment
performed by the state auditor and to the legislative audit committee's approval of
including the audit in the audit plan under Section 321.013, Government Code.
SECTIONi67.iiSubsection (b), Section 242.005, Health and Safety Code, is amended to read as follows:
(b)iiThe Legislative Budget Board and the state auditor shall jointly prescribe the form and content of reports required under this section, provided, however, that the state auditor's participation under this section is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c), Government Code.
SECTIONi68.iiSubsection (b), Section 451.452, Transportation Code, is amended to read as follows:
3980 78th Legislature — Regular Session 82nd Day
(b)iiThe state auditor may elect to [shall] file any comments about the audit with
the legislative audit committee and the board, subject to a risk assessment performed
by the state auditor and to the legislative audit committee's approval of including the
preparation of the comments in the audit plan under Section 321.013, Government
Code.
SECTIONi69.iiSubsection (b), Section 452.452, Transportation Code, is amended to read as follows:
(b)iiThe state auditor may elect to [shall] file any comments about the audit with
the legislative audit committee and the subregional board, subject to a risk assessment
performed by the state auditor and to the legislative audit committee's approval of
including the preparation of the comments in the audit plan under Section 321.013,
Government Code.
SECTIONi70.iiSection 58.017, Agriculture Code, is amended to read as follows:
Sec.i58.017.iiPERFORMANCE MEASURES. The Board, in conjunction with
the Legislative Budget Board[, the state auditor,] and the Office of the Governor, shall
develop a minimum of two performance measures that provide information on the
benefits of the authority's loan programs. The performance measures shall be included
in the report required under Section 58.016(d) of this code or as a component of the
measures incorporated into the General Appropriations Act.
SECTIONi71.iiArticle 60.02, Code of Criminal Procedure, is amended by adding Subsection (m) to read as follows:
(m)iiNotwithstanding Subsection (j), work performed under this section by the state auditor is subject to approval by the legislative audit committee for inclusion in the audit plan under Section 321.013(c), Government Code.
SECTIONi72.iiSubsection (d), Section 231.011, Family Code, as added by Chapter 556, Acts of the 76th Legislature, Regular Session, 1999, is amended to read as follows:
(d)iiEach agency represented on the work group shall identify specific child
support services that are related to the agency's areas of core competence and may be
provided by the agency under a contract. The [state auditor and the State Council on
Competitive Government shall assist:
[(1)iithe agencies in identifying the child support services that are within the
agency's core competency; and
[(2)iithe] work group shall develop [in developing] strategies to obtain child
support services from the agencies.
SECTIONi73.iiSubsection (d), Section 11.0182, Parks and Wildlife Code, is amended to read as follows:
(d)iiThe [At least once each biennium the] state auditor may [shall] audit the
fund-raising activities performed under this section, subject to a risk assessment
performed by the state auditor and to the legislative audit committee's approval of
including the audit in the audit plan under Section 321.013(c), Government Code. If
the state auditor performs an audit, the [The] audit shall disclose who has engaged in
fund-raising activities for the department and the value of gifts each person has
received or solicited. The state auditor shall report the results of the audit to the
Friday, May 30, 2003 SENATE JOURNAL 3981
SECTIONi74.iiThe following laws are repealed:
(1)iiSections 320.002, 481.123, 552.010, 659.2552, 751.012, 772.0031, 2155.071, 2170.006, and 2176.108, Government Code;
(2)iiSubsection (g), Section 2155.067, Subsection (l), Section 2155.083, and Subsection (e), Section 2155.144, Government Code;
(3)iiArticle 24.21, Insurance Code;
(4)iiSubsection (d), Section 302.057, Occupations Code;
(5)iiSection 4, Chapter 314, Acts of the 45th Legislature, Regular Session, 1937 (Article 6144cc, Vernon's Texas Civil Statutes); and
(6)iiSection 17, Article 5.76-3, Insurance Code.
SECTIONi75.iiThe change in law made by Section 2262.003, Government Code, as added by this Act:
(1)iiapplies only in relation to a state contract entered into on or after the effective date of this Act; and
(2)iidoes not affect any authority under other law to conduct an audit or investigation in relation to a state contract entered into before the effective date of this Act.
SECTIONi76.iiThis Act takes effect Septemberi1, 2003.
Floor Amendment No. 1
Amend CSSB 19 as follows:
Amend SECTION 74 as follows:
In Subdivision 1, insert "(d)" following "751.012" and insert Section 751.012(c)(4). Conform subsequent sections following Section 751.012(c) appropriately.
The amendments were read.
Senator Armbrister, on behalf of Senator Ratliff, moved to concur in the House amendments to SBi19.
The motion prevailed by a viva voce vote.
(Senator Armbrister in Chair)
SENATE BILL 1192 WITH HOUSE AMENDMENT
Senator Carona called SBi1192 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Committee Amendment No. 1
Amend SB 1192 to read as follows:
1) On page 2, beginning on line 7, strike "self-insured governmental entity, or self-insurance pool or joint insurance fund created by one or more political subdivisions under Chapter 791, Government Code, or Chapter 504, Labor Code,"
3982 78th Legislature — Regular Session 82nd Day
2) On page 2, beginning on line 12, after "insurer," strike "self-insurer governmental entity, or self-insurance pool or joint insurance fund created by one or more political subdivisions under Chapter 791, Government Code, or Chapter 504, Labor Code,"
The amendment was read.
Senator Carona moved to concur in the House amendment to SBi1192.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
MESSAGE FROM THE HOUSE
HOUSE CHAMBER
Austin, Texas
May 30, 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 CONCURRED IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES:
HB 1887 (House concurs by a vote of 133 yeas, 2 nays, 3 pnv)
HJR 51 (House concurs by a vote of 143 yeas, 0 nays, 1 pnv)
THE HOUSE HAS REFUSED TO CONCUR IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:
HB 1606
House Conferees: Wolens - Chair/Denny/Keel/Madden/Wilson/
THE HOUSE HAS GRANTED THE REQUEST OF THE SENATE FOR THE APPOINTMENT OF A CONFERENCE COMMITTEE ON THE FOLLOWING MEASURES:
SB 16
House Conferees: Woolley - Chair/Canales/Eissler/Grusendorf/Madden/
SB 160
House Conferees: Capelo - Chair/Laubenberg/McReynolds/Naishtat/Zedler/
SB 463
House Conferees: Eiland - Chair/Bonnen/Deshotel/Ritter/Seaman/
SB 473
House Conferees: Giddings - Chair/Corte/Elkins/Oliveira/Talton/
Friday, May 30, 2003 SENATE JOURNAL 3983
SB 610
House Conferees: Capelo - Chair/Laubenberg/Naishtat/Truitt/Zedler/
SB 631
House Conferees: Talton - Chair/Denny/Ellis/Howard/Keel/
SB 976
House Conferees: Morrison - Chair/Brown, Fred/Delisi/Goolsby/West, George "Buddy"/
SB 1015
House Conferees: Elkins - Chair/Keel/Martinez Fischer/Talton/Wise/
SB 1059
House Conferees: Marchant - Chair/Cook, Byron/Elkins/Lewis/Madden/
SB 1639
House Conferees: Hope - Chair/Cook, Robby/Geren/Miller/Puente/
THE HOUSE HAS ADOPTED THE FOLLOWING CONFERENCE COMMITTEE REPORTS:
HB 1165 (non-record vote)
HB 1702 (House adopts ccr by a vote of 135 yeas, 0 nays, 2 pnv)
SB 418 (House concurs by a vote of 146 yeas, 0 nays, 1 pnv)
SB 827 (non-record vote)
Respectfully,
/s/Robert Haney, Chief Clerk
House of Representatives
SENATE BILL 705 WITH HOUSE AMENDMENT
Senator Jackson called SBi705 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 705 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the donation by a county of salvage and surplus property to a civic or charitable organization.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 263.152(a), Local Government Code, is amended to read as follows:
(a)iiThe commissioners court of a county may:
(1)iiperiodically sell the county's surplus or salvage property by competitive bid or auction, except that competitive bidding or an auction is not necessary if the purchaser is another county or a political subdivision within the county that is selling the surplus or salvage property;
3984 78th Legislature — Regular Session 82nd Day
(2)iioffer the property as a trade-in for new property of the same general type
if the commissioners court considers that action to be in the best interests of the
county; [or]
(3)iiorder any of the property to be destroyed or otherwise disposed of as worthless if the commissioners court undertakes to sell that property under Subdivision (1) and is unable to do so because no bids are made; or
(4)iidispose of the property by donating it to a civic or charitable organization located in the county if the commissioners court determines that:
(A)iiundertaking to sell the property under Subdivision (1) would likely result in no bids or a bid price that is less than the county's expenses required for the bid process;
(B)iithe donation serves a public purpose; and
(C)iithe organization will provide the county with adequate consideration, such as relieving the county of transportation or disposal expenses related to the property.
SECTIONi2.iiChapter 285, Health and Safety Code, is amended by adding Subchapter Z to read as follows:
SUBCHAPTER Z. MISCELLANEOUS PROVISIONS
Sec.i285.901.iiDISPOSITION OF SALVAGE AND SURPLUS PROPERTY. (a) In this section:
(1)ii"Salvage property" has the meaning assigned by Section 263.151, Local Government Code.
(2)ii"Surplus property" has the meaning assigned by Section 263.151, Local Government Code.
(b)iiThe governing board of a hospital district may dispose of the hospital district's surplus or salvage property in the same way that a commissioners court of a county may dispose of the county's surplus or salvage property under Section 263.152, Local Government Code.
SECTIONi3.iiSection 263.152(c), Local Government Code, is repealed.
SECTIONi4.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 Jackson moved to concur in the House amendment to SBi705.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
SENATE BILL 1343 WITH HOUSE AMENDMENT
Senator Jackson called SBi1343 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.
Friday, May 30, 2003 SENATE JOURNAL 3985
Amendment
Amend SB 1343 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the regulation and operation of certain career schools and colleges.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. SUBSTANTIVE CHANGES REGARDING CAREER
SCHOOLS AND COLLEGES
SECTIONi1.01.iiSection 132.001, Education Code, is amended by amending Subdivisions (1)-(8), (10), and (12) and adding Subdivision (13) to read as follows:
(1)ii"Career school or college" ["Proprietary school"] means any business
enterprise operated for a profit[,] or on a nonprofit basis[,] that maintains a place of
business within this state[,] or solicits business within this state, [and] that is not
specifically exempted by this chapter, and:
(A)iithat offers or maintains a course or courses of instruction or study; or
(B)iiat which place of business such a course or courses of instruction or
study are [is] available through classroom instruction or by distance education
[correspondence], or both, to a person for the purpose of training or preparing the
person for a field of endeavor in a business, trade, technical, or industrial occupation,
or for avocational or personal improvement.
(2)ii"Owner" of a career school or college [proprietary school] means:
(A)iiin the case of a career school or college owned by an individual, that individual;
(B)iiin the case of a career school or college owned by a partnership, all full, silent, and limited partners;
(C)iiin the case of a career school or college owned by a corporation, the corporation, its directors, officers, and each shareholder owning shares of issued and outstanding stock aggregating at least 10 percent of the total of the issued and outstanding shares;
(D)iiin the case of a career school or college in which the ownership interest is held in trust, the beneficiary of that trust; or
(E)iiin the case of a career school or college owned by another legal entity, a person who owns at least 10 percent ownership interest in the entity.
(3)ii"School employee" means any person, other than an owner, who directly
or indirectly receives compensation from a career [proprietary] school or college for
services rendered.
(4)ii"Representative" means a person employed by a career [proprietary]
school or college, whether the school or college is located within or without this state,
to act as an agent, solicitor, broker, or independent contractor to directly procure
students for the school or college by solicitation within or without this state at any
place.
(5)ii"Agency administrator" means the agency administrator of the Texas
Workforce Commission or a person, knowledgeable in the administration of
regulating career [proprietary] schools and colleges, designated by the agency
administrator to administer this chapter.
3986 78th Legislature — Regular Session 82nd Day
(6)ii"Notice to the career school or college" [proprietary school"] means
written correspondence sent to the address of record for legal service contained in the
application for a certificate of approval. "Date of Notice" means the date the notice is
mailed by the commission.
(7)ii"Support" or "supported" means the primary source and means by which
a career [proprietary] school or college derives revenue to perpetuate its operation.
(8)ii"Person" means any individual, firm, partnership, association,
corporation, or other private entity or combination [thereof].
(10)ii"Small career school or college" [proprietary school"] means a career
[proprietary] school or college that does not receive any payment from federal funds
under 20 U.S.C. Section 1070 et seq. and its subsequent amendments or a prepaid
federal or state source as compensation in whole or in part for any student tuition and
fees or other charges and either:
(A)iihas an annual gross income from student tuition and fees that is less than or equal to $100,000 for programs regulated by the agency;
(B)iiexclusively offers programs to assist students to prepare for an undergraduate or graduate course of study at a college or university; or
(C)iiexclusively offers programs to assist students, who have obtained, or who are in the process of obtaining, degrees after completing an undergraduate or graduate course of study at a college or university, to prepare for an examination.
(12)ii"Division" means the division of education of [in] the commission.
(13)ii"Distance education" means a formal education process in which:
(A)iithe student and instructor are separated by physical distance; and
(B)iia variety of communication technologies may be used to deliver synchronous or asynchronous instruction to the student.
SECTIONi1.02.iiSubchapter A, Chapter 132, Education Code, is amended by adding Section 132.0015 to read as follows:
Sec.i132.0015.iiREFERENCE TO PROPRIETARY SCHOOL. A reference in this code or another law to a proprietary school means a career school or college.
SECTIONi1.03.iiSection 132.002, Education Code, is amended by amending Subsections (a) and (d) and adding Subsections (e), (f), and (g) to read as follows:
(a)iiThe following schools or educational institutions may be exempted [are
specifically exempt] from this chapter by the commission under Subsection (d) [and
are not within the definition of "proprietary school"]:
(1)iia school or educational institution supported by taxation from either a local or state source;
(2)iia nonprofit school [schools] owned, controlled, operated, and conducted
by a bona fide religious, denominational, eleemosynary, or similar public institution
[institutions] exempt from property taxation under the laws of this state[, but such
schools may choose to apply for a certificate of approval hereunder, and upon
approval and issuance, are subject to this chapter as determined by the commission];
(3)iia school or training program that offers instruction of purely avocational or recreational subjects as determined by the commission;
(4)iia course or courses of instruction or study sponsored by an employer for the training and preparation of its own employees, and for which no tuition fee is charged to the student;
Friday, May 30, 2003 SENATE JOURNAL 3987
(5)iia course or courses of study or instruction sponsored by a recognized trade, business, or professional organization for the instruction of the members of the organization with a closed membership;
(6)iia private college [colleges] or university [universities] that awards
[award] a recognized baccalaureate, or higher degree, and that maintains [maintain]
and operates [operate] educational programs for which a majority of the credits given
are transferable to a college, junior college, or university supported entirely or partly
by taxation from either a local or state source;
(7)iia school or course that is otherwise regulated and approved under and pursuant to any other law or rulemaking process of this state or approved for continuing education credit by an organization that accredits courses for the maintenance of a license, except as provided by Subsection (c);
(8)iian aviation school [schools] or instructor [instructors] approved by and
under the supervision of the Federal Aviation Administration;
(9)iia school that offers intensive review of a student's acquired education, training, or experience to prepare the student for an examination, other than a high school equivalency examination, that the student by law may not take unless the student has completed or substantially completed a particular degree program, or that the student is required to take as a precondition for enrollment in or admission to a particular degree program;
(10)iia private school offering primary or secondary education, which may include a kindergarten or prekindergarten program, and that satisfies the compulsory attendance requirements of Section 25.085 pursuant to Section 25.086(a)(1);
(11)iia course or courses of instruction by bona fide electrical trade associations for the purpose of preparing students for electrical tests required for licensing and for the purpose of providing continuing education to students for the renewal of electrical licenses;
(12)iia nonprofit arts organization that has as its primary purpose the provision of instruction in the dramatic arts and the communications media to persons younger than 19 years of age;
(13)iia course or training program conducted by a nonprofit association of
air conditioning and refrigeration contractors approved by the Air Conditioning and
Refrigeration Contractors Advisory Board to provide instruction for technical,
business, or license examination preparation programs relating to air conditioning and
refrigeration contracting, as that term is defined by Chapter 1302, Occupations Code
[the Air Conditioning and Refrigeration Contractor License Law (Article 8861,
Vernon's Texas Civil Statutes)];
(14)iia course of instruction by a plumbing trade association to prepare students for a plumbing test or program required for licensing, certification, or endorsement or to provide continuing education approved by the Texas State Board of Plumbing Examiners; and
(15)iia course of instruction in the use of technological hardware or software if the course is offered to a purchaser of the hardware or software or to the purchaser's employee by a person who manufactures and sells, or develops and sells, the
3988 78th Legislature — Regular Session 82nd Day
(d)iiExcept as provided by Subsection (g), a school or educational institution is exempt from regulation under this chapter only if:
(1)iithe owner of the school or educational institution:
(A)iiapplies to the commission for an exemption under this section; and
(B)iiprovides to the commission any information considered necessary by the commission to support the owner's application for an exemption; and
(2)iithe commission declares that the school or educational institution is exempt after finding that the school or institution is a school or institution listed in Subsection (a).
(e)iiAfter a school or educational institution is declared exempt by the commission under this section, the commission may inspect the school or institution or require the owner of the school or institution to provide any information the commission considers necessary for the commission to ensure the school or institution's continued compliance with the requirements of the exemption.
(f)iiA school or educational institution listed in Subsection (a) may seek a
certificate of approval under [Notwithstanding the exemptions listed in Subsection (a),
a dispute resolution organization, as defined by Section 154.001, Civil Practice and
Remedies Code, may seek a certificate of approval pursuant to] Subchapter C.
(g)iiAn institution of higher education or a private or independent institution of higher education, as defined by Section 61.003, that was exempt from regulation under this chapter before September 1, 2003, remains exempt from regulation under this chapter and is not required to comply with this section.
SECTIONi1.04.iiSection 132.051(b), Education Code, is amended to read as follows:
(b)iiAny contract entered into with any person for a course of instruction by or
on behalf of any person operating any career [proprietary] school or college to which
a certificate of approval has not been issued pursuant to this chapter is unenforceable
in any action brought thereon. Any note, other instrument of indebtedness, or contract
relating to payment for educational services obtained from a career school or college
that does not hold a certificate of approval issued under this chapter is unenforceable
in any action brought on the note, instrument, or contract.
SECTIONi1.05.iiSection 132.055, Education Code, is amended to read as follows:
Sec.i132.055.iiCRITERIA. The commission may approve the application of
such career [proprietary] school or college when the school or college is found, upon
investigation at the premises of the school or college, to have met the following
criteria:
(a)iiThe courses, curriculum, and instruction are of such quality, content, and
length as may reasonably and adequately achieve the stated objective for which the
courses, curriculum, or instruction is [are] offered. Before a school or college
conducts a course of instruction in court reporting, the school or college must produce
evidence that the school or college has obtained approval for the curriculum from the
Court Reporters Certification Board.
Friday, May 30, 2003 SENATE JOURNAL 3989
(b)iiThere is in the school or college adequate space, equipment, instructional material, and instructor personnel to provide training of good quality.
(c)iiEducational and experience qualifications of directors, administrators, and instructors are adequate.
(d)iiThe school or college maintains a written record of the previous education and training of the applicant student and clearly indicates that appropriate credit has been given by the school or college for previous education and training, with the new training period shortened where warranted through use of appropriate skills or achievement tests and the student so notified.
(e)iiA copy of the course outline; schedule of tuition, fees, refund policy, and other charges; regulations pertaining to absence, grading policy, and rules of operation and conduct; regulations pertaining to incomplete grades; the name, mailing address, and telephone number of the commission for the purpose of directing complaints to the agency; the current rates of job placement and employment of students issued a certificate of completion; and notification of the availability of the cost comparison information prepared under Section 132.021(b) through the commission will be furnished the student prior to enrollment.
(f)iiExcept as provided by Section 132.062, on completion of training, the student is given a certificate by the school or college indicating the course and that training was satisfactorily completed.
(g)iiAdequate records as prescribed by the commission are kept to show attendance and progress or grades, and satisfactory standards relating to attendance, progress, and conduct are enforced.
(h)iiThe school or college complies with all local, city, county, municipal, state, and federal regulations, such as fire, building, and sanitation codes. The commission may require such evidence of compliance as is deemed necessary.
(i)iiThe school or college is financially sound and capable of fulfilling its commitments for training.
(j)iiThe school's or college's administrators, directors, owners, and instructors are of good reputation and character.
(k)iiThe school or college has, maintains, and publishes in its catalogue and enrollment contract the proper policy for the refund of the unused portion of tuition, fees, and other charges in the event the student enrolled by the school or college fails to take the course or withdraws or is discontinued therefrom at any time prior to completion.
(l)iiThe school or college does not utilize erroneous or misleading advertising, either by actual statement, omission, or intimation as determined by the commission.
(m)iiSuch additional criteria as may be required by the commission.
(n)iiThe school or college does not use a name like or similar to an existing [tax
supported] school or college unless the commission approves the school's or college's
use of the name [in the same area].
(o)iiThe school or college furnishes to the commission the current rates of students who receive a certificate of completion and of job placement and employment of students issued a certificate of completion.
3990 78th Legislature — Regular Session 82nd Day
(p)iiThe school or college furnishes to the commission for approval or disapproval student admission requirements for each course or program offered by the school or college.
(q)iiThe school or college furnishes to the commission for approval or disapproval the course hour lengths and curriculum content for each course offered by the school or college.
(r)iiThe school or college does not owe a penalty under Section 132.152, 132.155, or 132.157.
SECTIONi1.06.iiSection 132.061, Education Code, is amended to read as follows:
Sec.i132.061.iiREFUND POLICY. (a) Except as provided by Subsection (g), as
a condition for granting certification each career [proprietary] school or college must
maintain a cancellation and settlement policy that must provide a full refund of all
monies paid by a student if:
(1)iithe student cancels the enrollment agreement or contract within 72 hours (until midnight of the third day excluding Saturdays, Sundays, and legal holidays) after the enrollment contract is signed by the prospective student; or
(2)iithe enrollment of the student was procured as the result of any misrepresentation in advertising, promotional materials of the school or college, or representations by the owner or representatives of the school or college.
(b)iiExcept as provided by Subsection (g), as a condition for granting
certification each career [proprietary] school or college must maintain a policy for the
refund of the unused portion of tuition, fees, and other charges in the event the
student, after expiration of the 72-hour cancellation privilege, fails to enter the course,
withdraws, or is discontinued therefrom at any time prior to completion, and such
policy must provide:
(1)iirefunds for resident courses and synchronous distance education courses will be based on the period of enrollment computed on the basis of course time expressed in clock hours;
(2)iithe effective date of the termination for refund purposes in residence schools or colleges will be the earliest of the following:
(A)iithe last date of attendance, if the student is terminated by the school or college;
(B)iithe date of receipt of written notice from the student; or
(C)ii10 school days following the last date of attendance;
(3)iiif tuition and fees are collected in advance of entrance, and if, after expiration of the 72-hour cancellation privilege, the student does not enter the residence school or college, not more than $100 shall be retained by the school or college;
(4)iifor the student who enters a residence or a synchronous distance education course of not more than 12 months in length, terminates, or withdraws, the school or college may retain $100 of tuition and fees and the minimum refund of the remaining tuition and fees will be:
(A)iiduring the first week or one-tenth of the course, whichever is less, 90 percent of the remaining tuition and fees;
Friday, May 30, 2003 SENATE JOURNAL 3991
(B)iiafter the first week or one-tenth of the course, whichever is less, but within the first three weeks or one-fifth of the course, whichever is less, 80 percent of the remaining tuition and fees;
(C)iiafter the first three weeks or one-fifth of the course, whichever is less, but within the first quarter of the course, 75 percent of the remaining tuition and fees;
(D)iiduring the second quarter of the course, 50 percent of the remaining tuition and fees;
(E)iiduring the third quarter of the course, 10 percent of the remaining tuition and fees; or
(F)iiduring the last quarter of the course, the student may be considered obligated for the full tuition and fees;
(5)iifor residence or synchronous distance education courses more than 12 months in length, the refund shall be applied to each 12-month period paid, or part thereof separately, and the student is entitled to a refund as provided by Subdivision (4);
(6)iirefunds of items of extra expense to the student, such as instructional supplies, books, student activities, laboratory fees, service charges, rentals, deposits, and all other such ancillary miscellaneous charges, where these items are separately stated and shown in the data furnished the student before enrollment, will be made in a reasonable manner acceptable to the commission;
(7)iirefunds based on enrollment in residence and synchronous distance education schools or colleges will be totally consummated within 60 days after the effective date of termination;
(8)iirefunds for asynchronous distance education [correspondence] courses
will be computed on the basis of the number of lessons in the course;
(9)iithe effective date of the termination for refund purposes in asynchronous
distance education [correspondence] courses will be the earliest of the following:
(A)iithe date of notification to the student if the student is terminated;
(B)iithe date of receipt of written notice from the student; or
(C)iithe end of the third calendar month following the month in which the student's last lesson assignment was received unless notification has been received from the student that the student wishes to remain enrolled;
(10)iiif tuition and fees are collected before any lessons have been completed, and if, after expiration of the 72-hour cancellation privilege, the student fails to begin the course, not more than $50 shall be retained by the school or college;
(11)iiin cases of termination or withdrawal after the student has begun the
asynchronous distance education [correspondence] course, the school or college may
retain $50 of tuition and fees, and the minimum refund policy must provide that the
student will be refunded the pro rata portion of the remaining tuition, fees, and other
charges that the number of lessons completed and serviced by the school or college
bears to the total number of lessons in the course; and
(12)iirefunds based on enrollment in asynchronous distance education
[correspondence] schools or colleges will be totally consummated within 60 days after
the effective date of termination.
3992 78th Legislature — Regular Session 82nd Day
(c)iiIn lieu of the refund policy herein set forth, for programs of instruction not
regularly offered to the public, the commission may, for good cause shown, amend,
modify, or substitute the terms of a career school's or college's [proprietary school's]
policy due to the specialized nature and objective of the school's or college's course of
instruction.
(d)iiIf a course of instruction is discontinued by the career [proprietary] school or
college and this prevents the student from completing the course, all tuition and fees
paid are then due and refundable.
(e)iiIf a refund is not made within the period required by this section, the career
[proprietary] school or college shall pay a penalty. If the refund is made to a lending
institution, the penalty shall also be paid to that institution and applied against the
student's loan. The commission annually shall establish the level of the penalty at a
level sufficient to provide a deterrent to the retention of student funds. The
commission may exempt a school or college from the payment of the penalty if the
school or college makes a good faith effort to refund the tuition, fees, and other
charges but is unable to locate the student. The school or college shall provide to the
commission on request documentation of the effort to locate the student.
(f)iiA career [proprietary] school or college shall record a grade of "incomplete"
for a student who withdraws but is not entitled to a refund under Subsection (b)(4)(F)
if the student requests the grade at the time the student withdraws and the student
withdraws for an appropriate reason unrelated to the student's academic status. A
student who receives a grade of incomplete may re-enroll in the program during the
12-month period following the date the student withdraws and complete those
incomplete subjects without payment of additional tuition.
(g)iiA program that is 40 hours or less of class time, or a seminar or workshop, is
exempt from the 72-hour rule provided by Subsection (a). The career [proprietary]
school or college shall maintain a policy for the refund of the unused portion of
tuition, fees, and other charges in the event the student fails to enter the course,
withdraws from the course, or is discontinued from the class at any time before
completion of the course as provided by this section. The policy must provide that:
(1)iirefunds are based on the period of enrollment computed on the basis of course time expressed in clock hours;
(2)iithe effective date of the termination for refund purposes is the earlier of:
(A)iithe last date of attendance; or
(B)iithe date the school or college receives written notice from the student that the student is withdrawing from the class; and
(3)iithe student will be refunded the pro rata portion of tuition, fees, and other charges that the number of class hours remaining in the course after the effective date of the termination bears to the total number of class hours in the course.
SECTIONi1.07.iiSections 132.152(c)-(i), Education Code, are amended to read as follows:
(c)iiIf, after examination of a possible violation and the facts relating to that
possible violation, the commission concludes that a violation has occurred, the
commission shall issue a preliminary report that states the facts on which the
conclusion is based, the fact that an administrative penalty is to be imposed
[recommended], and the amount of the penalty to be assessed [recommended]. Not
Friday, May 30, 2003 SENATE JOURNAL 3993
(d)iiNot later than the 20th day after the date on which the [person receives the]
report is sent, the person charged must either make a written request for a hearing or
remit the amount of the administrative penalty to the commission. Failure either to
request a hearing or to remit the amount of the administrative penalty within the time
provided by this subsection results in a waiver of a right to a hearing under this
section. If the person charged requests a hearing, the hearing shall be conducted in the
same manner as a hearing on the denial of a certificate of approval under Section
132.101. If the hearing results in a finding that a violation has occurred, the
commission shall:
(1)iiprovide to the person written notice of:
(A)iithe findings established at the hearing; and
(B)iithe amount of the penalty; and
(2)iienter an order requiring the person to pay the amount of the penalty [by
an administrative law judge of the State Office of Administrative Hearings. The
administrative law judge shall make findings of fact and conclusions of law and
promptly issue to the commission a proposal for a decision about the occurrence of
the violation and the amount of the proposed penalty. Based on the findings of fact,
conclusions of law, and proposal for decision, the commission by order may:
[(1)iifind that a violation has occurred and impose a penalty; or
[(2)iifind that a violation has not occurred].
(e)ii[The notice of the commission's order given to the person under Chapter
2001, Government Code, must include a statement of the person's right to judicial
review of the order.
[(f)]iiNot later than the 30th day after the date the person receives the order
entered by the commission under Subsection (d) [commission's order is final under
Section 2001.144, Government Code], the person shall:
(1)iipay the amount of the penalty;
(2)iiremit [pay] the amount of the penalty to the commission for deposit in
an escrow account and file a petition for judicial review contesting the occurrence of
the violation, the amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3)iiwithout paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty and file with the court a sworn affidavit stating that the person is financially unable to pay the amount of the penalty.
(f)iiThe commission's order is subject to judicial review in the same manner as an appeal of a decision to deny a certificate of approval under Section 132.102.
3994 78th Legislature — Regular Session 82nd Day
(g)iiIf on review the court does not sustain the occurrence of the violation or
finds that the amount of the penalty should be reduced, the commission shall remit the
appropriate amount to the person charged with the violation not later than the 30th
day after the date the court's judgment becomes final. [Within the period prescribed
by Subsection (f), a person who acts under Subsection (f)(3) may:
[(1)iistay enforcement of the penalty by:
[(A)iipaying the amount of the penalty to the court for placement in an
escrow account; or
[(B)iigiving to the court a supersedeas bond approved by the court that
is in the amount of the penalty and that is effective until all judicial review of the
commission'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 amount of the penalty and is financially unable
to give the supersedeas bond; and
[(B)iigiving a copy of the affidavit to the commission by certified mail.]
(h)iiIf the court sustains the occurrence of the violation:
(1)iithe court:
(A)iishall order the person to pay the amount of the penalty; and
(B)iimay award to the commission the attorney's fees and court costs incurred by the commission in defending the action; and
(2)iithe commission shall remit the amount of the penalty to the comptroller
for deposit in the general revenue fund. [The commission may file with the court a
contest to an affidavit received under Subsection (g)(2) not later than the fifth day
after the date the commission receives the copy. The 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 amount of
the penalty and to give a supersedeas bond.]
(i)iiIf the person does not pay the amount of the penalty after the commission's
order becomes final for all purposes [and the enforcement of the penalty is not
stayed], the commission may refer the matter to the attorney general for collection of
the amount of the penalty.
SECTIONi1.08.iiSubchapter I, Chapter 132, Education Code, is amended by adding Section 132.2415 to read as follows:
Sec.i132.2415.iiTUITION TRUST ACCOUNT. (a) The Texas Workforce Commission depository bonds guaranty trust account is renamed the career school or college tuition trust account. The career school or college tuition trust account is the account designated to receive all amounts related to the protection of career school or college tuition. The balance of the trust account may not exceed $1 million.
(b)iiThe commission may collect annually a fee from each career school or college to be deposited to the credit of the career school or college tuition trust account. The total amount of the fees collected in a year shall be set by the commission in the amount estimated as necessary to pay the liabilities of the trust
Friday, May 30, 2003 SENATE JOURNAL 3995
(c)iiIf, at the end of a fiscal year, the commission determines that the commission has collected fees under this chapter in excess of the amount necessary to defray the expense of administering this chapter, the commission may transfer any portion of the excess amount to the career school or college tuition trust account.
(d)iiFrom money in the career school or college tuition trust account, the commission shall attempt to provide a full refund to each student of a closed career school or college of the amount owed to the student as determined under Section 132.061. The commission may provide a partial refund to a student only if the commission determines that the amount in the trust account is insufficient to provide a full refund to the student. The commission shall consider the following factors in determining the amount of a partial refund to be paid to a student:
(1)iithe amount of money in the trust account;
(2)iithe cost and number of claims against the trust account resulting from closure of the school or college;
(3)iithe average cost of a claim paid from the trust account in the past; and
(4)iithe availability of other licensed career schools or colleges at which the student may complete the student's training.
SECTIONi1.09.iiSection 132.242, Education Code, is amended to read as follows:
Sec.i132.242.iiCLOSED SCHOOL OR COLLEGE. (a) If a career [proprietary]
school or college closes, the commission shall attempt to arrange for students of the
closed school or college to attend another career [proprietary] school or college.
(b)iiThe expense incurred by a career [proprietary] school or college in providing
a teachout that is directly related to educating a student placed in the school or college
under this section, including the applicable tuition for the period for which the student
has paid tuition, shall be paid from the career [proprietary] school or college tuition
trust account [protection fund].
(c)iiIf the student cannot be placed in another career [proprietary] school or
college, the student's tuition and fees shall be refunded under Section 132.061(d).
(d)iiIf a student does not accept a place that is available and reasonable in
another career [proprietary] school or college, the student's tuition and fees shall be
refunded under the refund policy maintained by the closing career [proprietary] school
or college under Section 132.061[(b)].
(e)iiFor each closed career school or college, refunds shall be paid from the
career school or college [If the amount of the closed proprietary school's bond under
Section 132.060 is less than the amount required for student refunds under
Subsections (c) and (d), the refunds shall be paid from the proprietary school] tuition
trust account [protection fund] in an amount not to exceed $150,000 [$50,000].
(f)iiIf another career [proprietary] school or college assumes responsibility for
the closed career school's or college's [proprietary school's] students with no
significant changes in the quality of training, the student is not entitled to a refund
under Subsection (c) or (d).
3996 78th Legislature — Regular Session 82nd Day
(g)iiAttorney's fees, court costs, or damages may not be paid from the career
[proprietary] school or college tuition trust account [protection fund].
SECTIONi1.10.iiThe following laws are repealed:
(1)iiSections 132.152(j)-(m), Education Code; and
(2)iiSections 132.060 and 132.241, Education Code.
SECTIONi1.11.iiThe change in law made by this article to Section 132.051(b), Education Code, applies only to a note or other instrument issued, or a contract entered into, on or after the effective date of this Act. A note or other instrument issued, or a contract entered into, before the effective date of this Act is governed by the law in effect on the date the note or other instrument was issued or the contract was entered into, and the former law is continued in effect for that purpose.
SECTIONi1.12.iiThe change in law made by this article to Section 132.055, Education Code, applies only to an application for a certificate of approval filed with the Texas Workforce Commission on or after the effective date of this Act. An application for a certificate of approval filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.
SECTIONi1.13.iiThe changes in law made by this article to Section 132.061(b), Education Code, apply only to the refund policy of a career school or college to which a certificate of approval is granted or renewed by the Texas Workforce Commission on or after the effective date of this Act.
SECTIONi1.14.iiThe changes in law made by this article to Section 132.152, Education Code, apply only to an alleged violation of Section 132.151, Education Code, that occurs on or after the effective date of this Act. An alleged violation that occurs before the effective date of this Act is governed by the law in effect on the date the alleged violation occurred, and the former law is continued in effect for that purpose.
SECTIONi1.15.iiOn or after the effective date of this article, any amount remaining in or payable to the credit of the tuition protection fund under Section 132.241, Education Code, as that section existed before repeal by this Act, shall be transferred to the credit of the career school or college tuition trust account established under Section 132.2415, Education Code, as added by this article.
ARTICLE 2. CONFORMING AMENDMENTS REGARDING
CAREER SCHOOLS AND COLLEGES
SECTIONi2.01.iiSection 52.32(b), Education Code, is amended to read as follows:
(b)iiIf a loan applicant is enrolled at a career [proprietary] school or college in a
degree program that is approved by the board, the applicant is not required to provide
evidence that the applicant [he] is unable to obtain a guaranteed student loan from a
commercial lender under Subsection (a)(2) of this section.
SECTIONi2.02.iiSection 53.02(5), Education Code, is amended to read as follows:
(5)ii"Institution of higher education" means (i) any institution of higher education as defined by Subdivision (8) of Section 61.003 of this code, or (ii) a degree-granting college or university corporation accredited by the Texas Education Agency or by a recognized accrediting agency, as defined by Subdivision (13) of
Friday, May 30, 2003 SENATE JOURNAL 3997
SECTIONi2.03.iiSection 54.6001, Education Code, is amended to read as follows:
Sec.i54.6001.iiPUBLIC PURPOSE. An educated population being necessary to
the social development and economic health of this state, the legislature finds and
declares it to be an urgent public necessity to assist young Texans in obtaining a
higher education. Because the state's population is rapidly growing and is diverse, the
state is required to use all of the higher education facilities and resources within the
state, both public and private, to provide a wide variety of educational environments
and instructional options and to preserve the partnership between the state and private
or independent institutions of higher education and between the state and career
[proprietary] schools and colleges, as defined by Section 132.001, that offer a
two-year associate degree as approved by the Texas Higher Education Coordinating
Board. Therefore, the prepaid higher education tuition program is established to help
Texas students attend the institution that best meets their individual needs.
SECTIONi2.04.iiSection 54.601(9), Education Code, is amended to read as follows:
(9)ii"Career school or college" ["Proprietary school"] means a career
[proprietary] school or college, as defined by Section 132.001, that offers a two-year
associate degree as approved by the Texas Higher Education Coordinating Board.
SECTIONi2.05.iiSection 54.605(a), Education Code, is amended to read as follows:
(a)iiA prepaid tuition contract remains in effect after the program is terminated if, when the program is terminated, the beneficiary:
(1)iihas been accepted by or is enrolled in an institution of higher education,
a private or independent institution of higher education, or a career [proprietary]
school or college; or
(2)iiis projected to graduate from high school not later than the third anniversary of the date the program is terminated.
SECTIONi2.06.iiSection 54.618(b), Education Code, is amended to read as follows:
(b)iiThe board may:
(1)iiadopt an official seal;
(2)iiadopt rules to implement this subchapter;
(3)iisue and be sued;
(4)iienter into contracts and other necessary instruments;
(5)iienter into agreements or other transactions with the United States, state
agencies, including institutions of higher education, private or independent
institutions of higher education, career [proprietary] schools and colleges, and local
governments;
(6)iiappear in its own behalf before governmental agencies;
3998 78th Legislature — Regular Session 82nd Day
(7)iicontract for necessary goods and services and engage the services of private consultants, actuaries, trustees, records administrators, managers, legal counsel, and auditors for administrative or technical assistance;
(8)iisolicit and accept gifts, grants, loans, and other aid from any source or participate in any other way in any government program to carry out this subchapter;
(9)iiimpose administrative fees;
(10)iicontract with a person to market the program;
(11)iipurchase liability insurance covering the board and employees and agents of the board; and
(12)iiestablish other policies, procedures, and eligibility criteria to implement this subchapter.
SECTIONi2.07.iiSection 54.619(h), Education Code, is amended to read as follows:
(h)iiNotwithstanding other provisions of this subchapter, any contract benefits
purchased under this subchapter may be applied to the payment of tuition and
required fees at a career [proprietary] school or college as if the [proprietary] school or
college were an institution of higher education or private or independent institution of
higher education. On the purchaser's request, the board shall apply, in accordance
with Section 54.628, any existing amount of prepaid tuition contract benefits to the
payment of tuition and required fees at a career [proprietary] school or college. The
board is not responsible for the payment of tuition and required fees at the career
[proprietary] school or college in excess of that amount. The board may adopt rules as
necessary to implement this subsection.
SECTIONi2.08.iiThe heading to Chapter 132, Education Code, is amended to read as follows:
CHAPTERi132.iiCAREER [PROPRIETARY] SCHOOLS
AND COLLEGES
SECTIONi2.09.iiSections 132.021(a) and (b), Education Code, are amended to read as follows:
(a)iiThe commission shall exercise jurisdiction and control of the system of
career [proprietary] schools and colleges, and the commission shall carry out
supervision of the provisions of this chapter, and enforce minimum standards for
approval of career [proprietary] schools and colleges under the operating regulations
and policies hereinafter set forth and as may be adopted pursuant to this chapter.
(b)iiThe commission shall prepare a comparison of the cost to a student of
courses of instruction or training programs at career [proprietary] schools and colleges
to the cost to a student of similar courses or programs at schools that are exempt from
this chapter under Section 132.002.
SECTIONi2.10.iiSection 132.022, Education Code, is amended to read as follows:
Sec.i132.022.iiDUTIES OF COMMISSION. The commission shall carry out the
policies of this chapter and enforce the rules adopted under this chapter. The
commission shall also certify the names of those career [proprietary] schools and
colleges meeting the requirements for a certificate of approval.
SECTIONi2.11.iiSection 132.023, Education Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 3999
Sec.i132.023.iiMEMORANDUM OF UNDERSTANDING FOR
REGULATION OF CAREER [PROPRIETARY] SCHOOLS AND COLLEGES. (a)
The commission shall develop, in consultation with the Texas Guaranteed Student
Loan Corporation and each state agency that regulates career [proprietary] schools
and colleges in this state, a comprehensive strategy to reduce default rates at the
regulated career [proprietary] schools and colleges and to improve the overall quality
of the programs operated by these schools and colleges.
(b)iiThe commission shall execute a memorandum of understanding outlining
the strategy with the corporation and each state agency regulating career [proprietary]
schools and colleges and shall adopt rules to carry out the commission's [its] duties
under this section. The Texas Guaranteed Student Loan Corporation shall adopt the
memorandum of understanding as procedures of the corporation, and each agency by
rule shall adopt the memorandum of understanding.
(c)iiThe memorandum of understanding shall:
(1)iirequire the development and monitoring of indicators that identify career
[proprietary] schools and colleges that have excessive loan default rates, poor program
performance, or both;
(2)iirequire the sharing of specific information relating to the indicators between the commission and the Texas Guaranteed Student Loan Corporation or other agency; and
(3)iirequire the application of specific sanctions by the commission or by the Texas Guaranteed Student Loan Corporation or other agency, as appropriate, to lower the default rates, improve program performance, or both.
(d)iiIf the commission enters into a memorandum of understanding with the
Texas Guaranteed Student Loan Corporation related to the regulation of career
[proprietary] schools and colleges, the commission may require each career
[proprietary] school or college governed by this chapter to provide information to the
commission that is necessary for the purposes of the memorandum of understanding.
SECTIONi2.12.iiSection 132.051(a), Education Code, is amended to read as follows:
(a)iiA career [proprietary] school or college may not maintain, advertise, solicit
for, or conduct any course of instruction in this state before the later of:
(1)iithe 30th day after the date the school or college applies for a certificate of approval under this chapter; or
(2)iithe date the school or college receives a certificate of approval from the commission.
SECTIONi2.13.iiSection 132.052, Education Code, is amended to read as follows:
Sec.i132.052.iiAPPLICATION FOR CERTIFICATE OF APPROVAL. Every
career [proprietary] school or college desiring to operate in this state or do business in
this state shall make written application to the commission for a certificate of
approval. Such application shall be verified, be in such form as may be prescribed by
the commission, and shall furnish the commission such information as the
commission may require.
SECTIONi2.14.iiSection 132.053, Education Code, is amended to read as follows:
4000 78th Legislature — Regular Session 82nd Day
Sec.i132.053.iiSTATUTORY WAIVER AUTHORITY. (a) The commission
may establish rules that waive, alter, suspend, or replace any of the following
provisions governing small career [proprietary] schools and colleges:
(1)iithe fee schedule authorized under Section 132.201, provided that fees
under a fee schedule established by rule may not be less than the reasonable
administrative cost for regulation or more than the amount that a small career
[proprietary] school or college would otherwise pay if it were not classified as a small
career [proprietary] school or college;
(2)iiparticipation in the career [proprietary] school or college tuition trust
account [protection fund] required by Section 132.2415 [132.241];
(3)iithe refund policy provisions of Section 132.061;
(4)ii[the bonding requirements of Section 132.060;
[(5)]iithe examination of a school or college for compliance under Section
132.056(f);
(5)i[(6)]iithe reporting requirements of Section 132.055(o); and
(6)i[(7)]iithe term for which a certificate of approval is issued under Section
132.056(b), provided that a rule adopted under this section may not provide for a term
that exceeds three years or is less than one year.
(b)iiA rule proposed under this section may be adopted only if it will reduce the
regulatory burden for small career [proprietary] schools and colleges and will
adequately safeguard the interests of the students of small career [proprietary] schools
and colleges to receive either the education for which they have contracted or an
appropriate refund.
SECTIONi2.15.iiSection 132.054, Education Code, is amended to read as follows:
Sec.i132.054.iiSMALL SCHOOL OR COLLEGE EXEMPTION. The
commission may exempt small career [proprietary] schools and colleges from any
requirement of this chapter to reduce the cost to small schools and colleges of
receiving a certificate of approval.
SECTIONi2.16.iiSection 132.056, Education Code, is amended to read as follows:
Sec.i132.056.iiISSUANCE OF CERTIFICATE OF APPROVAL; RENEWAL.
(a) The commission, upon review of an application for a certificate of approval duly
submitted in accordance with Section 132.052 and meeting the requirements of
Section 132.055, shall issue a certificate of approval to the applicant career
[proprietary] school or college. The certificate of approval shall be in a form
prescribed by the commission and shall state in a clear and conspicuous manner at
least the following information:
(1)iidate of issuance, effective date, and term of approval;
(2)iicorrect name and address of the school or college;
(3)iiauthority for approval and conditions of approval, if any, referring specifically to the approved catalogue or bulletin published by the school or college;
(4)iisignature of the agency administrator; and
(5)iiany other fair and reasonable representations that are consistent with this chapter and deemed necessary by the commission.
Friday, May 30, 2003 SENATE JOURNAL 4001
(b)iiThe term for which a certificate of approval shall be issued may not exceed one year.
(c)iiThe certificate of approval shall be issued to the owner of the applicant
career [proprietary] school or college and is nontransferable. In the event of a change
in ownership of the school or college, a new owner must, at least 30 days prior to the
change in ownership, apply for a new certificate of approval.
(d)iiAt least 30 days prior to expiration of a certificate of approval, the career
[proprietary] school or college shall forward to the commission an application for
renewal. The commission shall reexamine the premises of the school or college as
frequently as the commission considers necessary and renew, revoke, or deny renewal
of the school's or college's [school's] certificate of approval. If a school or college
fails to file a complete application for renewal at least 30 days before the expiration
date of the certificate of approval, the school or college, as a condition of renewal,
must pay, in addition to the annual renewal fee, a late renewal fee in an amount
established by commission rule of at least $100.
(e)iiA career [proprietary] school or college not yet in operation when its
application for a certificate of approval is filed may not begin operation until receipt
of the certificate of approval.
(f)iiThe commission shall visit a career [proprietary] school or college to
reexamine the school or college for compliance with the criteria provided by Section
132.055 not later than three months after the date the [a] school or college begins
operation or after a change in ownership of the [a] school or college.
SECTIONi2.17.iiSection 132.058, Education Code, is amended to read as follows:
Sec.i132.058.iiREVOCATION OF CERTIFICATE OF APPROVAL. (a) The
commission may revoke an issued certificate of approval or place reasonable
conditions upon the continued approval represented by the certificate. Prior to
revocation or imposition of conditions upon a certificate of approval, the commission
shall notify the holder of the certificate, in writing, of the impending action and set
forth the grounds for the action. The commission may reexamine a career
[proprietary] school or college two or more times during each year in which a notice
relating to the school or college has been issued or conditions have been imposed on
the school or college under this subsection.
(b)iiA certificate of approval may be revoked or made conditional if the
commission has reasonable cause to believe that the career [proprietary] school or
college is guilty of a violation of this chapter or of any rules adopted under this
chapter.
SECTIONi2.18.iiSections 132.059(a), (b), and (d), Education Code, are amended to read as follows:
(a)iiAll representatives employed by a career [proprietary] school or college shall
register with the commission. Application for registration may be made at any time
and shall be based on information submitted in accordance with the provisions of
Section 132.052.
4002 78th Legislature — Regular Session 82nd Day
(b)iiRegistration of a representative is effective upon receipt of notice from the
commission and remains in effect for a period not in excess of 12 calendar months.
Renewal of representative registration shall be in accordance with the renewal
application form forwarded to the career [proprietary] school or college by the
commission.
(d)iiCareer [Proprietary] schools and colleges domiciled or having their principal
place of business outside of this state that engage representatives to canvass, solicit, or
contract with any person within this state, are subject to the requirements for
registration of representatives.
SECTIONi2.19.iiSection 132.062, Education Code, is amended to read as follows:
Sec.i132.062.iiWITHHOLDING RECORDS. A career [proprietary] school or
college may withhold a student's transcript or certificate of completion of training
until the student has fulfilled the student's financial obligation to the school or college.
SECTIONi2.20.iiSection 132.063, Education Code, is amended to read as follows:
Sec.i132.063.iiAPPROVED DEGREES. A career [proprietary] school or
college may offer a degree approved by the Texas Higher Education Coordinating
Board.
SECTIONi2.21.iiSection 132.064, Education Code, is amended to read as follows:
Sec.i132.064.iiNONQUALIFICATION AS SMALL CAREER
[PROPRIETARY] SCHOOL AND COLLEGE. (a) A career [proprietary] school or
college operating as a small career [proprietary] school or college but that has an
annual gross income from tuition and fees that exceeds $100,000 (other than a test
preparation school described by Section 132.001(10)(B) or (C)) that intends to receive
a payment from federal funds under 20 U.S.C. Section 1070 et seq. or intends to
receive prepayment of tuition, fees, or other charges from federal or state funds shall
send written notice to the commission. The notice must be sent not later than the
following date, as applicable:
(1)iithe 60th day after the date on which annual gross income is determined to exceed the maximum;
(2)iithe day before receiving a payment of federal funds under 20 U.S.C. Section 1070 et seq.; or
(3)iithe day before enrolling a student who will prepay tuition, a fee, or another charge in whole or in part from federal or state funds.
(b)iiA career [proprietary] school or college that no longer qualifies as a small
career [proprietary] school or college shall apply for an initial certificate of approval
as a career [proprietary] school or college within 30 days after the date the school has
notified the commission that it no longer qualifies as a small career [proprietary]
school or college. The commission may apply or prorate any fees paid by the school
or college as a small career [proprietary] school or college.
(c)iiA career [proprietary] school or college that no longer qualifies as a small
career [proprietary] school or college shall submit to the commission an amount of
money equal to the difference between the fee for the small career [proprietary] school
Friday, May 30, 2003 SENATE JOURNAL 4003
(d)iiThe authority of a career [proprietary] school or college to operate under a
small career [proprietary] school or college certificate of approval terminates on the
final determination of issuance or denial of an initial certificate of approval. If a
school or college fails to file a complete application within the period required by
Subsection (b), the school or college, as a condition of issuance, must pay a late fee in
an amount established by commission rule of at least $100.
SECTIONi2.22.iiSection 132.151, Education Code, is amended to read as follows:
Sec.i132.151.iiPROHIBITIONS. A person may not:
(1)iioperate a career [proprietary] school or college without a certificate of
approval issued by the commission;
(2)iisolicit prospective students for or on behalf of a career [proprietary]
school or college without being registered as a representative of the career
[proprietary] school or college as required by this chapter;
(3)iiaccept contracts or enrollment applications from a representative who is not bonded as required by this chapter;
(4)iiutilize advertising designed to mislead or deceive prospective students;
(5)iifail to notify the commission of the discontinuance of the operation of
any career [proprietary] school or college within 72 hours of cessation of classes and
make available accurate records as required by this chapter;
(6)iifail to secure and file within 30 days an increased bond as required by this chapter;
(7)iinegotiate any promissory instrument received as payment of tuition or
other charge prior to completion of 75 percent of the course, provided that prior to
such time, the instrument may be transferred by assignment to a purchaser who shall
be subject to all the defenses available against the career [proprietary] school or
college named as payee; or
(8)iiviolate any provision of this chapter.
SECTIONi2.23.iiSection 132.153, Education Code, is amended to read as follows:
Sec.i132.153.iiCOMPETITIVE BIDDING; ADVERTISING. The commission
may not adopt rules to restrict competitive bidding or advertising by a career
[proprietary] school or college except to prohibit false, misleading, or deceptive
competitive bidding or advertising practices. Those rules may not restrict:
(1)iithe use of an advertising medium;
(2)iithe size or duration of an advertisement; or
(3)iiadvertisement under a trade name.
SECTIONi2.24.iiSection 132.154(a), Education Code, is amended to read as follows:
(a)iiWhenever the commission has probable cause to believe that any career
[proprietary] school or college has committed any acts that would be in violation of
this chapter, the commission shall apply for an injunction restraining the commission
of such acts.
4004 78th Legislature — Regular Session 82nd Day
SECTIONi2.25.iiSection 132.156, Education Code, is amended to read as follows:
Sec.i132.156.iiSANCTIONS. (a) If the commission has reasonable cause to
believe that a career [proprietary] school or college has violated this chapter or a rule
adopted under this chapter, the commission may:
(1)iiorder a peer review of the school or college; or
(2)iisuspend the admission of students to the school or college.
(b)iiA peer review ordered under this section shall be conducted by a peer review
team composed of knowledgeable persons selected by the commission. The
commission shall attempt to provide a balance on each team between members
assigned to the team who are from this state and those who are from other states. The
team shall provide the commission with an objective assessment of the content of the
career school's or college's [proprietary school's] curriculum and its application. The
costs of providing a peer review team shall be paid by the school or college.
SECTIONi2.26.iiSections 132.157(a), (b), (c), and (d), Education Code, are amended to read as follows:
(a)iiIf a career [proprietary] school or college fails to timely comply with the
requirements of Section 132.064, in addition to any other penalties authorized by law,
the commission may assess a penalty in an amount not greater than two times the
amount that the school or college would have paid in fees and other charges if the
school or college had complied with the requirements of Section 132.064 or may
assess a penalty in the amount of the tuition or fee charge to any students whose
tuition or fees were contracted to be funded by a prepaid federal or state source.
(b)iiIf the commission finds that the career [proprietary] school or college acted
intentionally, the commission may, in addition to any other remedy available under
law, assess a penalty against the owner in an amount not greater than four times the
amount of the fees and charges that the school or college should have paid or four
times the amount of the student tuition that was contracted to be funded from a
prepaid federal or state source.
(c)iiThe failure to notify the commission within four months after the career
school's or college's [proprietary school's] earnings exceed that of a small career
[proprietary] school or college gives rise to a rebuttable presumption of intent for
purposes of assessment of a penalty.
(d)iiThe failure to notify the commission within 10 days after a career
[proprietary] school or college has enrolled a student whose tuition or fees are paid in
whole or in part from a prepaid federal or state source gives rise to a rebuttable
presumption of intent for purposes of assessment of a penalty.
SECTIONi2.27.iiSections 132.201(a), (c), (d), (e), (f), (h), and (i), Education Code, are amended to read as follows:
(a)iiCertificate and registration fees, except those charged pursuant to Subsection (d), shall be collected by the commission. Each fee shall be in an amount set by the commission in an amount not to exceed 150 percent of each fee in the following schedule:
(1)iithe initial fee for a career [proprietary] school or college:
(A)iifor a certificate of approval is $2,000; or
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(B)iifor a small career [proprietary] school or college certificate of
approval is $1,000;
(2)iithe first renewal fee and each subsequent renewal fee for a career
[proprietary] school or college is the greater of:
(A)iian amount that is determined by applying a percentage, not to exceed 0.3 percent, to the gross tuition and fees, excluding refunds as provided by Section 132.061, of the school or college; or
(B)ii$500;
(3)iithe initial registration fee for a representative is $60;
(4)iithe annual renewal fee for a representative is $30;
(5)iithe fee for a change of a name of a career [proprietary] school or college
or owner is $100;
(6)iithe fee for a change of an address of a career [proprietary] school or
college is $180;
(7)iithe fee for a change in the name or address of a representative or a
change in the name or address of a career [proprietary] school or college that causes
the reissuance of a representative permit is $10;
(8)iithe application fee for an additional course is $150, except for seminar and workshop courses, for which the fee is $25;
(9)iithe application fee for a director, administrative staff member, or instructor is $15;
(10)iithe application fee for the authority to grant degrees is $2,000;
(11)iithe application fee for an additional degree course is $250; and
(12)iithe fee for an inspection required by commission rule of classroom facilities that are separate from the main campus is $250.
(c)iiFor purposes of this section, the gross amount of annual student fees and
tuition for a career [proprietary] school or college is the amount determined by the
commission based on any report submitted by the school or college to the commission
or other information obtained by the commission.
(d)iiIn connection with the regulation of any career [proprietary] school or
college or course through a memorandum of understanding pursuant to Section
132.002(c), the commission shall set an application and annual renewal fee, not to
exceed $2,000. The fee shall be an amount reasonably calculated to cover the
administrative costs associated with assuming the additional regulation.
(e)iiThe fee for an investigation at a career [proprietary] school or college to
resolve a complaint filed against the school or college is $600. The fee may be
charged only if:
(1)iithe complaint could not have been resolved by telephone or written correspondence only;
(2)iia representative of the commission visits the school or college as a part of the complaint resolution process; and
(3)iithe school or college is found to be at fault.
(f)iiThe commission may allow payment of any fee authorized under this section
or under Section 132.2415 [132.241] that exceeds $1,000 to be paid by installment.
The commission shall provide for appropriate interest charges and late penalties in
addition to any other remedy that is provided for by law for the late payment of a fee
4006 78th Legislature — Regular Session 82nd Day
(h)iiThe commission may apply or prorate a fee paid by a small career
[proprietary] school or college that has complied with the notification requirements of
Section 132.064 toward an initial certificate as a career [proprietary] school or college
in the event that a career [proprietary] school or college has ceased to qualify as a
small career [proprietary] school or college during a certification period.
(i)iiThe commission may charge each career [proprietary] school or college a fee
for the cost of a service that collects, analyzes, and reports student-level data in order
to assess the outcome of students who attend career [proprietary] schools and
colleges. The total amount of the fees charged under this subsection must not exceed
the cost of the service to the commission.
SECTIONi2.28.iiSection 52.013(b), Government Code, is amended to read as follows:
(b)iiThe board may:
(1)iiappoint any necessary or proper subcommittee;
(2)iihire necessary employees;
(3)iipay all reasonable expenses from available funds;
(4)iiapprove curriculum for court reporter career [proprietary] schools and
colleges as provided by Section 132.055, Education Code;
(5)iiapprove court reporter programs in technical institutes and public community colleges for purposes of certification under Section 61.051, Education Code; and
(6)iiapprove continuing professional education courses for persons certified as court reporters.
SECTIONi2.29.iiSection 305.002(3), Labor Code, is amended to read as follows:
(3)ii"Eligible institution" means a career [proprietary] school or college in
this state that:
(A)iiholds a certificate of approval under Chapter 132, Education Code; and
(B)iiis approved by the commission under Section 305.023 for its students to participate in the grant program established under this chapter.
SECTIONi2.30.iiSection 305.023, Labor Code, is amended to read as follows:
Sec.i305.023.iiAPPROVAL OF INSTITUTIONS.iiThe commission shall
approve a career [proprietary] school or college for its students to participate in the
grant program established under this chapter if the school or college:
(1)iihas been accredited for not less than five years by an accrediting agency recognized by the United States Department of Education and maintains that accreditation;
(2)iihas held a certificate of approval under Chapter 132, Education Code, for at least five years; and
(3)iioffers one or more qualified education programs.
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SECTIONi2.31.iiSection E, Article 2.23A, Texas Non-Profit Corporation Act (Article 1396-2.23A, Vernon's Texas Civil Statutes), is amended to read as follows:
E.iiThis article does not apply to:
(1)iia corporation that solicits funds only from its members;
(2)iia corporation which does not intend to solicit and receive and does not actually raise or receive contributions from sources other than its own membership in excess of $10,000 during a fiscal year;
(3)iia career [proprietary] school or college that has received a certificate of
approval from the Texas Workforce Commission [State Commissioner of Education],
a public institution of higher education and foundations chartered for the benefit of
such institutions or any component part thereof, a private or independent institution of
higher education as defined by Section 61.003, Education Code, a postsecondary
educational institution with a certificate of authority to grant a degree issued by the
Texas Higher Education Coordinating Board, [Texas College and University System,]
or an elementary or secondary school;
(4)iireligious institutions which shall be limited to churches, ecclesiastical or denominational organizations, or other established physical places for worship at which religious services are the primary activity and such activities are regularly conducted;
(5)iia trade association or professional society whose income is principally derived from membership dues and assessments, sales, or services;
(6)iiany insurer licensed and regulated by the Texas Department [State
Board] of Insurance;
(7)iian organization whose charitable activities relate to public concern in the conservation and protection of wildlife, fisheries, and allied natural resources;
(8)iian alumni association of a public or private institution of higher education in this state, provided that such association is recognized and acknowledged by the institution as its official alumni association.
ARTICLE 3. EFFECTIVE DATE
SECTIONi3.01.iiThis Act takes effect September 1, 2003.
The amendment was read.
Senator Jackson moved to concur in the House amendment to SBi1343.
The motion prevailed by a viva voce vote.
SENATE CONCURRENT RESOLUTION 60
The Presiding Officer, Senator Armbrister in Chair, laid before the Senate the following resolution:
WHEREAS, The Senate of the State of Texas has passed HBi2180 and returned it to the House of Representatives of the State of Texas; and
WHEREAS, Further consideration of the bill by the senate is necessary; now, therefore, be it
RESOLVED, by the Senate of the State of Texas, the House of Representatives of the State of Texas concurring, That the senate hereby respectfully requests that the chief clerk of the house be authorized to return House Bill No. 2180 to the senate for further consideration.
4008 78th Legislature — Regular Session 82nd Day
The resolution was read.
On motion of Senator Carona, the resolution was considered immediately and was adopted without objection.
SENATE BILL 4 WITH HOUSE AMENDMENTS
Senator Zaffirini called SBi4 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Floor Amendment No. 1
Amend SB 4 (House committee report) as follows:
(1) In SECTION 1 of the bill, in added Subdivision (1), Section 56.455, Education Code (page 2, line 26), between "Chapter 54" and the semicolon, insert ", except as provided by Subdivision (2)(B) of this section".
(2) In SECTION 1 of the bill, at the end of added Paragraph (A), Subdivision (2), Section 56.455, Education Code (page 3, line 4), strike "; or".
(3) In SECTION 1 of the bill, immediately following added Paragraph (A), Subdivision (2), Section 56.455, Education Code (page 3, between lines 4 and 5), insert the following:
"(B) be a graduate of a high school operated by the United States Department of Defense who:
(i) at the time of graduation lived with a parent or parents stationed outside the United States; and
(ii) is a resident of this state for purposes of Subchapter B, Chapter 54, or intends to become a resident of this state; or".
(4) In SECTION 1 of the bill, in added Paragraph (B), Subdivision (2), Section 56.455, Education Code (page 3, line 5), strike "(B)" and substitute "(C)".
Floor Amendment No. 2
Amend SB 4 by adding the following appropriately numbered SECTION and renumbering the other SECTIONS of the bill accordingly:
SECTION ____. Subchapter A, Chapter 130, Education Code, is amended by adding Section 130.0012 to read as follows:
Sec. 130.0012. PILOT PROJECT: BACCALAUREATE DEGREE PROGRAMS. (a) The Texas Higher Education Coordinating Board shall establish a pilot project to examine the feasibility and effectiveness of authorizing public junior colleges to offer baccalaureate degree programs in the fields of applied science and applied technology. Participation in the pilot project does not otherwise alter the role and mission of a public junior college.
(b) The coordinating board shall operate the pilot project at the following public junior colleges:
(1) Brazosport College;
(2) El Centro College of the Dallas County Community College District;
(3) Midland College;
(4) North Harris Montgomery Community College District; and
(5) South Texas Community College.
Friday, May 30, 2003 SENATE JOURNAL 4009
(c) A public junior college participating in the pilot project must meet all applicable accreditation requirements of the Commission on Colleges of the Southern Association of Colleges and Schools.
(d) A public junior college participating in the pilot project may not offer more than five baccalaureate degree programs under the project at any time. The degree programs are subject to the continuing approval of the coordinating board. In determining what baccalaureate degree programs are to be offered, the junior college and the coordinating board shall consider:
(1) the need for the degree programs in the region served by the junior college;
(2) how those degree programs would complement the other programs and course offerings of the junior college;
(3) whether those degree programs would unnecessarily duplicate the degree programs offered by other institutions of higher education; and
(4) the ability of the junior college to support the program and the adequacy of the junior college's facilities, faculty, administration, libraries, and other resources.
(e) Each public junior college that offers a baccalaureate degree program under the pilot project must enter into an articulation agreement with one or more general academic teaching institutions to ensure that students enrolled in the degree program have an opportunity to complete the degree if the public junior college ceases to offer the degree program. The coordinating board may require a general academic teaching institution that offers a comparable degree program to enter into an articulation agreement with the public junior college as provided by this subsection.
(f) In its recommendations to the legislature relating to state funding for public junior colleges, the coordinating board shall recommend that a public junior college receive substantially the same state support for junior-level and senior-level courses offered under the pilot project as that provided to a general academic teaching institution for substantially similar courses. In determining the contact hours attributable to students enrolled in a junior-level or senior-level course offered under the pilot project used to determine a public junior college's proportionate share of state appropriations under Section 130.003, the coordinating board shall weigh those contact hours as necessary to provide the junior college the appropriate level of state support to the extent state funds for those courses are included in the appropriations. This subsection does not prohibit the legislature from directly appropriating state funds to support junior-level and senior-level courses offered under the pilot project.
(g) Each public junior college participating in the pilot project shall prepare a biennial report on the operation and effectiveness of the junior college's baccalaureate degree programs offered under the project and shall deliver a copy of the report to the coordinating board in the form and at the time determined by the coordinating board.
(h) Not later than January 1, 2009, the coordinating board shall prepare a progress report on the pilot project. Not later than January 1, 2011, the coordinating board shall prepare a report on the effectiveness of the pilot project, including any recommendations for legislative action regarding the offering of baccalaureate degree programs by public junior colleges. The coordinating board shall deliver a copy of
4010 78th Legislature — Regular Session 82nd Day
(i) Unless the authority to continue offering the baccalaureate degree programs is continued by the legislature, a public junior college may not:
(1) enroll a new student in a baccalaureate degree program under the pilot project after the 2011 fall semester;
(2) offer junior-level or senior-level courses for those degree programs after the 2015 fall semester, unless the coordinating board authorizes the college to offer those courses; or
(3) award a baccalaureate degree under the pilot project after the 2015 fall semester, unless the coordinating board approves the awarding of the degree.
(j) The coordinating board shall prescribe procedures to ensure that each public junior college that offers a degree program under the pilot project informs each student who enrolls in the degree program of:
(1) the nature of the pilot project, including the limited duration of the project; and
(2) the articulation agreement entered into under Subsection (e) for the student's degree program.
(k) This section expires January 1, 2020.
Floor Amendment No. 1 on Third Reading
Amend SB 4 on third reading in SECTION 1 of the bill, in added Paragraph (A), Subdivision (2), Section 56.455, Education Code, by striking "public or accredited private high school" and substituting "public high school or an accredited or unaccredited private high school".
Floor Amendment No. 2 on Third Reading
Amend SB 4 on third reading by adding an appropriately numbered section to read as follows:
SECTION ____. Subchapter Z, Chapter 51, Education Code, is amended by adding Section 51.9356 to read as follows:
Sec. 51.9356. PILOT PROGRAM REGARDING THE RETENTION OF STUDENTS IN HIGHER EDUCATION. (a) The Texas Higher Education Coordinating Board shall develop a pilot program called the "Freshman SUCCESS Program" that will focus on retention of high-risk students who are first generation in college, low-income, and/or educationally underprepared by providing proactive intervention modalities to meet the demands of college.
(b) The pilot program shall address the students' academic, emotional, behavioral, and financial needs as well as cultural barriers that may affect their success in college.
(c) In conducting this pilot program study, the board shall:
(1) identify and evaluate the potential benefits and advantages of this type of program;
(2) evaluate and make recommendations concerning any legal, administrative, or practical problems with this type of program; and
Friday, May 30, 2003 SENATE JOURNAL 4011
(3) indicate the impact on the goals for the Texas Higher Education Coordinating Board's Closing the Gaps strategy.
(d) The board shall complete the pilot program study and report the results of the study to the Legislature on or before December 1, 2004. The report must include the board's recommendations concerning the Freshman SUCCESS Program.
(e) In this section, "board" means the Texas Higher Education Coordinating Board.
(f) This section expires September 1, 2005.
The amendments were read.
Senator Zaffirini moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 4 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Zaffirini, Chair; VanideiPutte, Shapiro, Whitmire, and Averitt.
SENATE BILL 86 WITH HOUSE AMENDMENTS
Senator Wentworth called SBi86 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer laid the bill and the House amendments before the Senate.
Floor Amendment No. 1
Amend SB 86 by adding the following SECTIONS to read as follows:
SECTION ____. Section 51.801, Education Code, is amended to read as follows:
Sec. 51.801. DEFINITIONS. In this subchapter, "general academic teaching institution," "governing board," "medical and dental unit," "public junior college," "public technical institute," and "university system" have the meanings assigned by Section 61.003.
SECTION ____. Subchapter U, Chapter 51, Education Code, is amended by adding Section 51.8065 to read as follows:
Sec. 51.8065. AUTOMATIC ADMISSION TRACK - HIGH SCHOOL TO JUNIOR COLLEGE TO GENERAL ACADEMIC TEACHING INSTITUTION: (a) In this section, "public upper-level institution of higher education" means an institution of higher education that offers only junior-level and senior-level courses or only junior-level, senior-level, and graduate-level courses.
(b) Except as provided by Subsection (g), each general academic teaching institution shall admit an applicant for admission to the institution as an undergraduate transfer student if in the year preceding the academic year for which the applicant is applying for admission under this section the applicant:
4012 78th Legislature — Regular Session 82nd Day
(1) received a degree or certificate from a public junior college or public technical institute in a program requiring at least 42 semester credit hours of core curriculum; and
(2) completed the program with a cumulative grade point average of at least a 3.0 on a four-point scale or the equivalent.
(c) To qualify for admission under this section, an applicant must submit an application before the expiration of any application filing deadline established by the institution.
(d) After admitting an applicant under this section, the institution may review the applicant's record and any other factor the institution considers appropriate to determine whether the applicant may require additional preparation for college-level work or would benefit from inclusion in a retention program. The institution may require a student so identified to enroll during the summer immediately after the student is admitted under this section to participate in appropriate enrichment courses and orientation programs. This section does not prohibit a student who is not determined to need additional preparation for college-level work from enrolling, if the student chooses, during the summer immediately after the student is admitted under this section.
(e) Admission to a specific general academic teaching institution is contingent on the availability of space within the institution for the admission of additional students.
(f) Admissions to a particular program or school within a general academic teaching institution are based solely on the requirements of the institution.
(g) This section does not apply to:
(1) a public upper-level institution of higher education; or
(2) any other general academic teaching institution if, with respect to the academic year for which an undergraduate transfer student has applied for admission under this section, the institution has filled through automatic admission as required by the other provisions of this subchapter at least 50 percent of the spaces available for entering undergraduate students at the institution.
SECTION ____. (a) Section 51.8065, Education Code, takes effect immediately and applies beginning with admissions for the 2004 fall semester.
(b) The Texas Higher Education Coordinating Board and each general academic teaching institution shall adopt rules or policies relating to the admission of students under Section 51.8065, Education Code, as added by this Act, not later than Januaryi1, 2004.
Floor Amendment No. 2
Amend SB 86 by adding the following appropriately numbered SECTION and renumbering the other SECTIONS of the bill accordingly:
SECTION ____. Section 28.026, Education Code, is amended to read as follows:
Sec. 28.026. NOTICE OF AUTOMATIC COLLEGE ADMISSION. (a) The board of trustees of a school district shall require each high school in the district to post appropriate signs in each counselor's office, in each principal's office, and in each administrative building indicating the substance of Section 51.803 regarding automatic college admission. To assist in the dissemination of this information, the school district shall:
Friday, May 30, 2003 SENATE JOURNAL 4013
(1) require that each high school counselor and class advisor be provided a detailed explanation of the substance of Section 51.803;
(2) require that each high school counselor and senior class advisor explain to eligible students the substance of Section 51.803; and
(3) provide each eligible senior student under Section 51.803 and the student's parent or guardian, at the commencement of a class's senior year, with a written notification of the student's eligibility with a detailed explanation of the substance of Section 51.803.
(b) The agency shall adopt a form to use in providing notice under Subsection (a)(3). In providing notice under Subsection (a)(3), a school district shall use the form adopted by the agency.
Floor Amendment No. 3
Amend SB 86 in SECTION 1 of the bill, immediately following proposed Section 51.803(e), Education Code (page 3, between lines 7 and 8), by inserting the following:
(f) A general academic teaching institution is not required to fill more than 60 percent of the institution's total number of spaces available for first-time resident undergraduate students at the institution through the admission of applicants under Subsection (a). If the number of applications for admission under Subsection (a) received by the institution exceeds 60 percent of the total number of spaces available for first-time resident undergraduate students at the institution, the institution may give automatic admission as provided by this section to those applicants until 60 percent of the institution's total number of spaces available for first-time resident undergraduate students are filled. The institution shall consider the factors listed in Section 51.805 to determine which of the remaining applicants under Subsection (a) the institution will admit.
Floor Amendment No. 4
Amend SB 86 as follows:
(1) In SECTION 1 of the bill, in added Section 51.803(d), Education Code (committee printing page 2, line 22), strike "2007-2008" and substitute "2008-2009".
(2) In SECTION 2 of the bill, in added Section 28.025(g-1), Education Code (committee printing page 4, line 6), strike "2003-2004" and substitute "2004-2005".
(3) In SECTION 2 of the bill, in added Section 28.025(g-1), Education Code (committee printing page 4, line 7), strike "2004" and substitute "2005".
Floor Amendment No. 5
Amend SB 86 (House committee printing) by adding the following appropriately numbered SECTION to the bill and renumbering the remaining SECTIONS of the bill accordingly:
SECTION ____. (a) Section 51.805(c), Education Code, is amended to read as follows:
(c) A general academic teaching institution may review other factors in making an admissions decision. A general academic teaching institution must consider the same factors and apply the same standards, criteria, and formulas, including minimum
4014 78th Legislature — Regular Session 82nd Day
(b) The change in law made by this Act in amending Section 51.805(c), Education Code, applies beginning with undergraduate admissions to a general academic teaching institution of higher education for the 2004-2005 academic year. Undergraduate admissions to a term or semester before that academic year are covered by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.
The amendments were read.
Senator Wentworth moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 86 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Wentworth, Chair; Shapiro, West, Janek, and Madla.
SENATE BILL 474 WITH HOUSE AMENDMENT
Senator Lucio called SBi474 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Floor Amendment No. 1
Amend SB 474 House committee report in Section 2 as follows:
On page 3, line 27, subsection (7), strike "one member who has expertise in nutrition" and insert "a licensed or registered dietitian employed by a school district".
On page 4, line 3, strike "and"
On page 4, line 5 strike the period and insert ";"
On page 4, after line 5, add two new subsections to read as follows:
"(10) an elected public school board member, appointed by the governor; and"
"(11) a representative of a statewide, voluntary membership organization representing school district boards of trustees, appointed by the governor."
The amendment was read.
Senator Lucio moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
Friday, May 30, 2003 SENATE JOURNAL 4015
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 474 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Lucio, Chair; Janek, Shapiro, Deuell, and VanideiPutte.
SENATE BILL 1782 WITH HOUSE AMENDMENT
Senator Lindsay called SBi1782 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Committee Amendment No. 1
Amend SB 1782 Senate engrossment as follows:
On line page 2, lines 14 through 20, delete the current subsection (d) and substitute the following new subsection (d) to read as follows:
(d) Subsection (b) does not apply when:
(1) the department owns the access rights under Section 203.034; or
(2) the adjacent property owner does not own the abutter's rights of access.
The amendment was read.
Senator Lindsay moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1782 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Lindsay, Chair; Shapiro, Shapleigh, Ogden, and Armbrister.
SENATE BILL 1108 WITH HOUSE AMENDMENTS
Senator Shapiro called SBi1108 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 1108 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to academic achievement in public schools.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubchapter A, Chapter 21, Education Code, is amended by adding Section 21.005 to read as follows:
4016 78th Legislature — Regular Session 82nd Day
Sec.i21.005.iiHIGH-QUALITY TEACHERS. The commissioner may by rule establish a statewide standard to be used to certify each school district that is preparing, training, and recruiting high-quality teachers in a manner consistent with the No Child Left Behind Act of 2001 (Pub. L. No. 107–110).
SECTIONi2.iiSubchapter Z, Chapter 29, Education Code, is amended by adding Section 29.908 to read as follows:
Sec.i29.908.iiPROGRAMS OF MUTUAL BENEFIT. (a)iiThe commissioner, in coordination with appropriate representatives of institutions of higher education and school districts, shall develop:
(1)iia diagnostic and assistance program for each subject assessed by an assessment instrument under Section 39.023(c); and
(2)iiother academic programs of mutual benefit to school districts and institutions of higher education.
(b)iiThe commissioner shall seek private funding to make available and maintain on the Internet each diagnostic and assistance program developed under Subsection (a)(1).
SECTIONi3.iiSection 39.131(b), Education Code, is amended to read as follows:
(b)iiIf a campus performance is below any standard under Section 39.073(b), the
campus is considered a low-performing campus. The [and the] commissioner may
permit the campus to participate in an innovative redesign of the campus to improve
campus performance or may take any of the other following actions, listed in order of
severity, to the extent the commissioner determines necessary:
(1)iiissue public notice of the deficiency to the board of trustees;
(2)iiorder a hearing conducted by the board of trustees at the campus for the purpose of notifying the public of the unacceptable performance, the improvements in performance expected by the agency, and the sanctions that may be imposed under this section if the performance does not improve within a designated period of time and of soliciting public comment on the initial steps being taken to improve performance;
(3)iiorder the preparation of a report regarding the parental involvement program at the campus and a plan describing strategies for improving parental involvement at the campus;
(4)iiorder the preparation of a report regarding the effectiveness of the district- and campus-level planning and decision-making committees established under Subchapter F, Chapter 11, and a plan describing strategies for improving the effectiveness of those committees;
(5)iiorder the preparation of a student achievement improvement plan that addresses each academic excellence indicator for which the campus's performance is unacceptable, the submission of the plan to the commissioner for approval, and implementation of the plan;
(6)iiorder a hearing to be held before the commissioner or the commissioner's designee at which the president of the board of trustees, the superintendent, and the campus principal shall appear and explain the campus's low performance, lack of improvement, and plans for improvement;
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(7)iiappoint a special campus intervention team to:
(A)iiconduct a comprehensive on-site evaluation of each low-performing campus to determine the cause for the campus's low performance and lack of progress;
(B)iirecommend actions, including reallocation of resources and technical assistance, changes in school procedures or operations, staff development for instructional and administrative staff, intervention for individual administrators or teachers, waivers from state statute or rule, or other actions the team considers appropriate;
(C)iiassist in the development of a campus plan for student achievement; and
(D)iiassist the commissioner in monitoring the progress of the campus in implementing the campus plan for improvement of student achievement;
(8)iiif a campus has been a low-performing campus for a period of one year or more, appoint a board of managers composed of residents of the district to exercise the powers and duties of the board of trustees of the district in relation to the campus; or
(9)iiif a campus has been a low-performing campus for a period of two years or more, order closure of the school program on the campus.
SECTIONi4.iiThis Act applies beginning with the 2003-2004 school year, except that the commissioner of education shall make available not later than the beginning of the 2004-2005 school year the programs developed under Section 29.908(a)(1), Education Code, as added by this Act.
SECTIONi5.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.
Floor Amendment No. 1
Amend CSSB 1108 by adding the following appropriately numbered SECTION to the bill and renumbering the subsequent SECTIONS accordingly:
SECTIONi____.iiSubchapter B, Chapter 28, Education Code, is amended by adding Section 28.0212 to read as follows:
Sec.i28.0212.iiINTENSIVE PROGRAM OF INSTRUCTION. (a) A school district shall offer an intensive program of instruction to a student who does not perform satisfactorily on an assessment instrument administered under Subchapter B, Chapter 39.
(b)iiA school district shall design the intensive program of instruction described by Subsection (a) to:
(1)iienable the student to:
(A)iito the extent practicable, perform at the student's grade level at the conclusion of the next regular school term; or
(B)iiattain a standard of annual growth specified by the school district and reported by the district to the agency; and
(2)iiif applicable, carry out the purposes of Section 28.0211.
4018 78th Legislature — Regular Session 82nd Day
(c)iiA school district shall use funds appropriated by the legislature for an intensive program of instruction to plan and implement intensive instruction and other activities aimed at helping a student satisfy state and local high school graduation requirements. The commissioner shall distribute funds to districts that implement a program under this section based on the number of students identified by the district who:
(1)iido not perform satisfactorily on an assessment instrument administered under Subchapter B, Chapter 39; or
(2)iiare not likely to receive a high school diploma before the fifth school year following the student's enrollment in grade nine, as determined by the district.
(d)iiA school district's determination of the appropriateness of a program for a student under this section is final and does not create a cause of action.
Floor Amendment No. 2
Amend CSSB 1108 between Sections 2 and 3 of the bill (House committee report, page 1, following line 24), by inserting the following new section and renumbering the subsequent sections accordingly:
SECTIONi____.ii(a) Section 39.023(a), Education Code, is amended to read as follows:
(a)iiThe agency shall adopt or develop appropriate criterion-referenced assessment instruments designed to assess essential knowledge and skills in reading, writing, mathematics, social studies, and science. All students, except students assessed under Subsection (b) or (l) or exempted under Section 39.027, shall be assessed in:
(1)iimathematics, annually in grades three through seven without the aid of technology and in grades eight through 11 with the aid of technology on any assessment instruments that include algebra;
(2)iireading, annually in grades three through nine;
(3)iiwriting, including spelling and grammar, in grades four and seven;
(4)iiEnglish language arts, in grade 10;
(5)iisocial studies, in grades five, eight, and 10; and
(6)iiscience, in grades five, eight, and 10.
(b)iiThe commissioner of education shall adopt rules for the implementation of Sections 39.023(a)(5) and (6), Education Code, as amended by Subsection (a) of this section. The commissioner's rules must provide that:
(1)iiexcept as provided by Subdivision (3) of this subsection, not later than the 2006-2007 school year, the State Board of Education shall administer:
(A)iia social studies assessment instrument to students in the fifth grade as provided by Section 39.023(a)(5), Education Code, as amended by Subsection (a) of this section; and
(B)iia science assessment instrument to students in the eighth grade as provided by Section 39.023(a)(6), Education Code, as amended by Subsection (a) of this section;
Friday, May 30, 2003 SENATE JOURNAL 4019
(2)iiexcept as provided by Subdivision (4) of this subsection, not later than the 2008-2009 school year, the Texas Education Agency, in evaluating the performance of school districts, campuses, and open-enrollment charter schools under Subchapter D, Chapter 39, Education Code, shall include the results of student performance on:
(A)iithe fifth grade social studies assessment instrument required by Section 39.023(a)(5), Education Code, as amended by Subsection (a) of this section; and
(B)iithe eighth grade science assessment instrument required by Section 39.023(a)(6), Education Code, as amended by Subsection (a) of this section;
(3)iinot later than the 2008-2009 school year, the State Board of Education shall administer assessment instruments under Section 39.023(b), Education Code, that correspond to:
(A)iithe fifth grade social studies assessment instrument required by Section 39.023(a)(5), Education Code, as amended by Subsection (a) of this section; and
(B)iithe eighth grade science assessment instrument required by Section 39.023(a)(6), Education Code, as amended by Subsection (a) of this section; and
(4)iinot later than the 2010-2011 school year, the Texas Education Agency shall include the results of student performance on the assessment instruments described by Subdivision (3) of this subsection in evaluating the performance of school districts, campuses, and open-enrollment charter schools under Subchapter D, Chapter 39, Education Code.
Floor Amendment No. 4
Amend CSSB 1108 by adding the following appropriately numbered SECTIONS and renumbering the subsequent SECTIONS of the bill accordingly:
SECTIONi____.iiSection 29.903, Education Code, as added by Chapter 944, Acts of the 77th Legislature, Regular Session, 2001, is renumbered as Section 29.909, Education Code, and is amended to read as follows:
Sec.i29.909 [29.903].iiELECTRONIC COURSES. (a) In this section,
"electronic course" means an educational program or course:
(1)iithat includes use of [available to students primarily through] the Internet
or other electronic media; and
(2)iiin which a student and a teacher are in different locations for a majority
of the student's instructional period [enrolled in the course is not physically present in
the classroom for all or part of the course].
(b)iiThe commissioner shall implement a program under which a school district
may offer [an] electronic courses [course] to students enrolled in the district or to
students enrolled in another district, as provided by an agreement between the
districts. A district may not require a student to enroll in an electronic course. The
district may offer the electronic courses through a designated campus or through a
full-time program serving students throughout the district.
(c)iiThe commissioner shall select school districts to participate in the program based on applications submitted by the districts. The commissioner may not require a district to participate in the program. The commissioner may determine the number of
4020 78th Legislature — Regular Session 82nd Day
(1)iinumber of at-risk students, as determined by the commissioner;
(2)iidropout rate; or
(3)iipopulation of underserved gifted and talented students, as determined by the commissioner.
(d)iiA school district seeking to participate in the program must submit a written
application to the commissioner not later than July 1 preceding the school year the
district proposes to begin participation [participate] in the program, or an earlier date
set by the commissioner. The application must include:
(1)iia proposed budget for the program;
(2)iia method to be used to verify student attendance;
(3)ii[an accountability plan;
[(4)iia description of each electronic course to be offered by the district;
[(5)iia description of the students expected to be enrolled in each electronic
course;
[(6)]iiany requested waiver of a requirement, restriction, or prohibition
imposed by this code or by a rule of the State Board of Education or the
commissioner, [;] and
[(7)]iithe period for which any requested waiver [under Subdivision (6)] is
proposed to be in effect; and
(4)iithe information required under Subsection (f).
(e)iiThe commissioner may collect from each district that submits an application under Subsection (d) a reasonable fee sufficient to pay the costs of administering this section.
(f)iiNot later than a date determined by the commissioner, each school district participating in the program shall create and maintain on the district's Internet website an "informed choice" report in a format determined by the commissioner. The agency shall maintain on its Internet website a link to each district report under this subsection. Each report must include a description of:
(1)iieach course of instruction offered to students in the program, including the number of lessons, the expected duration of each lesson, and a description of each lesson that requires use of a computer;
(2)iiall materials required for each course offered in the program;
(3)iithe process used to ensure that each course meets the essential knowledge and skills requirements under Subchapter A, Chapter 28, including any consultation with a district curriculum specialist;
(4)iithe process used to place students in the appropriate academic levels of the program, including:
(A)iisample placement evaluations;
(B)iiinformation related to each person responsible for placement of a student;
(C)iithe circumstances in which a student may be placed in different academic levels for different course subjects during a school year; and
Friday, May 30, 2003 SENATE JOURNAL 4021
(D)iithe circumstances in which a student may complete more than one course level during a school year;
(5)iiany technology provided by the program to each student enrolled in the program, including any computer, computer software, or Internet access;
(6)iithe method used to report attendance in the program;
(7)iithe method used to authenticate student course work and attendance;
(8)iithe location and content of each scheduled meeting between parents or guardians of students enrolled in the program and teachers or other school officials, and the method used to notify parents and guardians of the time and location of each meeting;
(9)iithe program policies relating to:
(A)iicomputer security and privacy; and
(B)iitruancy, absences, discipline, withdrawal, and expulsion of students;
(10)iiany extracurricular activities provided by the program, including activities held on a campus in the school district;
(11)iithe teaching model used by the program, including:
(A)iieach teacher's responsibilities;
(B)iiminimum teacher qualifications;
(C)iiminimum hours of training provided to teachers;
(D)iiaverage and maximum student/teacher ratios;
(E)iihours of teacher availability; and
(F)iifor each grade level, minimum and expected amounts of contact between teachers and parents and between teachers and students;
(12)iiany academic services that the program expects a student's parent or guardian to provide to the student;
(13)iieach standardized assessment instrument, in addition to any assessment instrument required under Chapter 39, that the student is required to complete during the school year and, if available, the location for administration of the instrument;
(14)iia summary of the results of each assessment instrument administered to students in the program during the school year preceding the year the report is submitted; and
(15)iithe school year calendar for the program, including any options for continued participation outside of the standard school district calendar.
(g)iiA school district is entitled to receive federal, state, and local funding for a student enrolled in an electronic course in an amount equal to the funding the district is otherwise entitled to receive for a student enrolled in the district. A school district may calculate the average daily attendance of a student enrolled in an electronic course based on:
(1)iihours of contact with the student;
(2)iithe student's successful completion of a course; or
(3)iia method approved by the commissioner.
(h)i[(e)]iiThe commissioner may waive any requirement, restriction, or
prohibition imposed by this code [relating to the computation of daily attendance] to
the extent necessary to implement a program under this section.
4022 78th Legislature — Regular Session 82nd Day
(i)i[(f)]iiThe commissioner may cooperate with the comptroller, the Department
of Information Resources, or any other state agency or commission in adopting
technical standards for auditing or verifying student attendance in an electronic
course.
(j)i[(g)]iiNot later than December 1, 2006 [2002], the commissioner shall submit
a report to the lieutenant governor and the speaker of the house of representatives. The
report must include:
(1)ii[proposed] methods proposed by school districts for funding electronic
courses, including an evaluation of the fiscal costs or benefits of each method;
(2)iiavailable methods of verifying student attendance in an electronic course, including biometric attendance methods;
(3)iiany security or privacy issues involved in providing an electronic course;
(4)iithe educational benefits of an electronic course;
(5)iia list of any waiver requests submitted to the commissioner by school
districts under Subsection (d)(3) [(d)(6)]; and
(6)iia list of any provisions waived by the commissioner in the implementation of a program under this section.
(k) [(h)]iiThis subsection and Subsection (j) expire January [section expires
September] 1, 2007 [2003].
SECTIONi____.iiSection 29.909(e), Education Code, as added by this Act, applies only to a district that applies for participation in the electronic course program under Section 29.909, Education Code, as renumbered by this Act, on or after the effective date of this Act.
Floor Amendment No. 5
Amend CSSB 1108 between the enacting clause and SECTION 1 of the bill (House committee printing, page 1, between lines 3 and 4), by inserting the following new SECTIONS and by renumbering subsequent SECTIONS of the bill accordingly:
SECTIONi1.iiSubchapter C, Chapter 12, Education Code, is amended by adding Section 12.0521 to read as follows:
Sec.i12.0521.iiALTERNATIVE AUTHORIZATION. (a) Notwithstanding Section 12.052, in accordance with this subchapter and in the manner provided by this section, the board of trustees of a school district or the governing body of a home-rule school district may grant a charter for:
(1)iia new district campus; or
(2)iia program that is operated:
(A)iiby an entity that has entered into a contract with the district under Section 11.157 to provide educational services to the district through the campus or program; and
(B)iiat a facility located in the boundaries of the district.
(b)iiA student's parent or guardian may choose to enroll the student at a campus or in a program under this section. A school district may not assign a student to a campus or program under this section unless the student's parent or guardian has voluntarily enrolled the student at the campus or in the program. A student's parent or
Friday, May 30, 2003 SENATE JOURNAL 4023
(c)iiA school district may not assign to a campus or program under this section a teacher who has signed a written statement that the teacher does not agree to that assignment.
SECTIONi2.iiSections 12.057, 12.058, and 12.062, Education Code, are amended to read as follows:
Sec.i12.057.iiSTATUS. (a) With respect to the operation of a campus or program
granted a charter under this subchapter, the [A] governing body of the campus or
program provided for under the charter is considered a governmental body for
purposes of Chapters 551 and 552, Government Code.
(b)iiAn employee of a campus or program granted a charter under Section
12.052, 12.0521(a)(1), or 12.053 [this subchapter] who qualifies for membership in
the Teacher Retirement System of Texas shall be covered under the system in the
same manner and to the same extent as a qualified employee employed on a regularly
operating campus or in a regularly operating program is covered.
(c)iiA [The] campus or program granted a charter under Section 12.052,
12.0521(a)(1), or 12.053 is immune from liability to the same extent as a school
district, and its employees and volunteers are immune from liability to the same extent
as school district employees and volunteers.
Sec.i12.058.iiCHARTER POLICY. [(a)] Each school district shall adopt a
campus charter and [campus] program charter policy. The policy must specify:
(1)iithe process to be followed for approval of a campus charter or a
[campus] program charter;
(2)iithe statutory requirements with which a campus charter or [campus]
program charter must comply; and
(3)iithe items that must be included in a charter application.
[(b)iiEach school district shall adopt a campus charter and campus program
charter policy as required by this section not later than January 1, 1998.]
Sec.i12.062.iiREVISION. (a) A charter granted under Section 12.052 or 12.053
[this subchapter] may be revised:
(1)iiwith the approval of the board of trustees that granted the charter; and
(2)iion a petition signed by a majority of the parents and a majority of the classroom teachers at the campus or in the program, as applicable.
(b)iiA charter granted under Section 12.0521 may be revised with the approval of the board of trustees that granted the charter. A charter may be revised under this subsection only before the first day of instruction of a school year or after the final day of instruction of a school year.
Floor Amendment No. 6
Amend CSSB 1108 on page 1, between lines 10 and 11 by inserting the following and renumbering subsequent SECTIONS appropriately:
SECTION 2. Subchapter A, Chapter 21, Education Code, is amended by adding Section 21.456 to read as follows:
4024 78th Legislature — Regular Session 82nd Day
Sec. 21.456. Training for Teachers of Students of Limited English Proficiency. The commissioner shall develop and make available training materials and other teacher training resources to assist teachers in developing the expertise required to enable students of limited English proficiency meet state performance expectations.
SECTION 3. Section 39.024, Education Code, is amended to read as follows:
(a) Except as otherwise provided by this subsection, the State Board of Education shall determine the level of performance considered to be satisfactory on the assessment instruments. The admission, review, and dismissal committee of a student being assessed under Section 39.023(b) shall determine the level of performance considered to be satisfactory on the assessment instruments administered to that student in accordance with criteria established by agency rule.
(b) Each school district shall offer an intensive program of instruction for students who did not perform satisfactorily on an assessment instrument administered under this subchapter. The intensive programs for students who did not perform satisfactorily on an assessment instrument under Section 39.023(a), (c), or (l) shall be designed to enable those students to be performing at grade level at the conclusion of the next regular school term or to attain a standard of annual growth specified by the agency and, if applicable, to carry out the purposes of Section 28.0211. The intensive programs for students who did not perform satisfactorily on an assessment instrument under Section 39.023(b) shall be designed by each student's admission, review, and dismissal committee to enable the student to attain a standard of annual growth on the basis of the student's individualized education program and, if applicable, to carry out the purposes of Section 28.0211.
(c) The agency shall develop study guides for the assessment instruments administered under Sections 39.023(a) and (c). To assist parents in providing assistance during the period that school is recessed for summer, each school district shall distribute the study guides to parents of students who do not perform satisfactorily on one or more parts of an assessment instrument administered under this subchapter.
(d) The agency shall develop and make available teacher training materials and other teacher training resources to assist teachers in enabling students of limited English proficiency meet state performance expectations. The teacher training resources shall be designed to support intensive, individualized, and accelerated instructional programs developed by school districts for students of limited English proficiency.
(e) The commissioner shall retain a portion of the total amount of funds allotted
under Section 42.152(a) that the commissioner considers appropriate to finance
activities under Subsections (c) and may retain a portion for activities under
Subsection (d) and for intensive programs of instruction for students of limited
English proficiency offered by school districts [development and distribution of the
study guides] and shall reduce each district's allotment proportionately.
Floor Amendment No. 7
Amend CSSB 1108 (House committee report), on page 1, between SECTION 2 and SECTION 3, by inserting the following new SECTION and renumbering the remaining sections appropriately:
SECTION 3. Section 39.034(a), Education Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 4025
(a) Except as otherwise provided by this subsection, the State Board of Education shall determine the level of performance considered to be satisfactory on the assessment instruments. The board may set a level of performance considered to be satisfactory on the assessment instruments for purposes of the academic excellence indicators under Section 39.051(b) that is higher than the level considered to be satisfactory for a student to advance from one grade level to the next under Section 28.0211. The admission, review, and dismissal committee of a student being assessed under Section 39.023(b) shall determine the level of performance considered to be satisfactory on the assessment instruments administered to that student in accordance with criteria established by agency rule.
Floor Amendment No. 8
Amend CSSB 1108 by adding the following new SECTION to the bill, appropriately numbered, and renumbering the subsequent SECTIONS of the bill accordingly:
SECTIONi____.iiSection 29.082(a), Education Code, is amended to read as follows:
(a)iiA school district may set aside an amount from the district's allotment under Section 42.152 or may apply to the agency for funding of an extended year program for a period not to exceed 30 instructional days for students in:
(1)iikindergarten through grade 11 [8] who are identified as likely not to be
promoted to the next grade level for the succeeding school year; or
(2)iigrade 12 who are identified as likely not to graduate from high school before the beginning of the succeeding school year.
Floor Amendment No. 9
Amend CSSB 1108 by adding the following new SECTIONS to the bill, appropriately numbered, and by renumbering the subsequent SECTIONS of the bill accordingly:
SECTION ____. Section 28.0211, Education Code, is amended by amending Subsections (a)-(e) and (i) and adding Subsection (a-1) to read as follows:
(a)iiExcept as provided by Subsection (b) or (e), a student may not be promoted to:
(1)iithe fourth grade program to which the student would otherwise be assigned if the student does not:
(A) perform satisfactorily on the third grade reading assessment instrument under Section 39.023; or
(B)iimeet the alternative promotion criteria established under Subsection (a-1);
(2)iithe sixth grade program to which the student would otherwise be assigned if the student does not:
(A) perform satisfactorily on the fifth grade mathematics and reading assessment instruments under Section 39.023; or
(B)iimeet the alternative promotion criteria established under Subsection (a-1); or
(3)iithe ninth grade program to which the student would otherwise be assigned if the student does not:
4026 78th Legislature — Regular Session 82nd Day
(A) perform satisfactorily on the eighth grade mathematics and reading assessment instruments under Section 39.023; or
(B)iimeet the alternative promotion criteria established under Subsection (a-1).
(a-1) The alternative promotion criteria must include:
(1)iithe student's performance on the individual assessment instruments administered to the student under Section 39.023;
(2)iithe student's total score on each assessment instrument specified by Subsection (a)(1)(A), (2)(A), or (3)(A), using only the student's highest scores;
(3)iithe student's overall academic performance, as evaluated by the student's teacher or teachers based on evidence of satisfactory performance, including the student's:
(A)iigrades;
(B)iiportfolios and work samples;
(C)iiperformance on locally administered assessment instruments;
(D)iiperformance on individual reading and mathematics diagnostic tests or inventories; and
(E)iiimprovement in performance on subsequent administrations of an assessment instrument specified under Subsection (a); and
(4)iiany extenuating circumstances that adversely affected the student's performance on the specified assessment instruments or participation in accelerated instruction.
(b)iiA school district shall provide to a student who initially fails to perform satisfactorily on an assessment instrument specified under Subsection (a) and who fails to meet the alternative promotion criteria established under Subsection (a-1) at least two additional opportunities to take the assessment instrument. A school district may administer an alternate assessment instrument to a student who has failed an assessment instrument specified under Subsection (a) on the previous two opportunities or has not met the alternative promotion criteria established under Subsection (a-1). Notwithstanding any other provision of this section, a student may be promoted if the student performs at grade level on an alternate assessment instrument under this subsection that is appropriate for the student's grade level and approved by the commissioner.
(c)iiThe first [Each] time a student fails to perform satisfactorily on an
assessment instrument specified under Subsection (a), the school district in which the
student attends school shall establish a grade placement committee composed of the
principal or the principal's designee, the student's parent or guardian, and the teacher
of the subject of an assessment instrument on which the student failed to perform
satisfactorily. The district shall notify the parent or guardian of the time and place for
convening the grade placement committee and the purpose of the committee. The
grade placement committee shall determine whether the student has met the
alternative promotion criteria established under Subsection (a-1). If the grade
placement committee determines, as provided by Subsection (e), that the student has
not met the alternative promotion criteria established under Subsection (a-1), the
committee shall prescribe for [provide to] the student accelerated instruction in the
applicable subject area, including reading instruction for a student who fails to
Friday, May 30, 2003 SENATE JOURNAL 4027
(d)iiIn addition to providing accelerated instruction to a student under Subsection (c), the district shall notify the student's parent or guardian of:
(1)iithe student's failure to perform satisfactorily on the assessment instrument or meet the alternative promotion criteria established under Subsection (a-1);
(2)iithe accelerated instruction program to which the student is assigned; and
(3)iithe possibility that the student might be retained at the same grade level for the next school year.
(e)iiA student who, after at least three attempts, fails to perform satisfactorily on
an assessment instrument specified under Subsection (a) and who fails to meet the
alternative promotion criteria established under Subsection (a-1) or perform
satisfactorily on an alternate assessment instrument under Subsection (b) shall be
retained at the same grade level for the next school year [in accordance with
Subsection (a). The student's parent or guardian may appeal the student's retention by
submitting a request to the grade placement committee established under Subsection
(c). The school district shall give the parent or guardian written notice of the
opportunity to appeal]. The grade placement committee may decide in favor of a
student's retention [promotion] only if the grade placement committee established
under Subsection (c) concludes, after reviewing all the facts and circumstances in
accordance with Subsection (a-1) [using standards adopted by the board of trustees],
that even if promoted and given accelerated instruction, the student is not likely to
perform at grade level during the next school year. A student may not be retained
[promoted] on the basis of the grade placement committee's decision unless that
decision is unanimous. The review and final decision of the grade placement
committee must be appropriately documented as complying with Subsection (a-1).
The commissioner by rule shall establish a time line for making the placement
determination. This subsection does not create a property interest in promotion. The
decision of the grade placement committee is final and may not be appealed.
(i)iiIf the student is an individual with a disability, as defined by 29 U.S.C. Section 705(20), and its subsequent amendments, the committee established by the school district in compliance with Section 504, Rehabilitation Act of 1973 (29 U.S.C. Section 794), and its subsequent amendments, shall determine whether the student has met the alternative promotion criteria established under Subsection (a-1). The admission, review, and dismissal committee of a student who participates in a
4028 78th Legislature — Regular Session 82nd Day
(1)iithe manner in which the student will participate in an accelerated instruction program under this section; and
(2)iiwhether the student will be promoted or retained under this section.
SECTION ____. Section 28.0211, Education Code, as amended by this Act, applies beginning with the 2003-2004 school year.
Floor Amendment No. 10
Amend CSSB 1108 (House committee report) by adding the following appropriately numbered SECTION to the bill and renumbering the subsequent SECTIONS appropriately:
SECTION ____. Section 39.027, Education Code, is amended by adding Subsection (b-1) to read as follows:
(b-1) The commissioner may appoint an advisory committee to study exemptions from and adopt recommendations for reading assessment instruments under this chapter, other than exemptions described by Subsection (b), for dyslexic students. The State Board of Education may adopt the recommendations of the advisory committee. The advisory committee appointed under this subsection must include:
(1) a person involved in public education;
(2) a medical specialist familiar with the diagnosis and treatment of dyslexic students; and
(3) an advocate for dyslexic students.
Floor Amendment No. 11
Amend CSSB 1108 by adding the following new SECTIONS to the bill, appropriately numbered, and by renumbering the subsequent SECTIONS of the bill accordingly:
SECTIONi____.iiSections 28.025(a), (c), and (d), Education Code, as amended by Chapters 187 and 834, Acts of the 77th Legislature, Regular Session, 2001, are amended and reenacted to read as follows:
(a)iiThe State Board of Education by rule shall determine curriculum requirements for the minimum, recommended, and advanced high school programs that are consistent with the required curriculum under Section 28.002.
(c)iiA person may receive a diploma if the person is eligible for a diploma under
Section 28.0251. In other cases, a [A] student may graduate and receive a diploma
only if:
(1)iithe student successfully completes the curriculum requirements identified by the State Board of Education under Subsection (a) and:
(A)iicomplies with Section 39.025(a); or
(B)iimeets the alternative graduation criteria prescribed under Section 28.0252; or
(2)iithe student successfully completes an individualized education program developed under Section 29.005.
Friday, May 30, 2003 SENATE JOURNAL 4029
(d)iiA school district may issue a certificate of coursework completion to a student who successfully completes the curriculum requirements identified by the State Board of Education under Subsection (a) but who fails to comply with Section 39.025(a) or the alternative graduation criteria under Section 28.0252. A school district may allow a student who receives a certificate to participate in a graduation ceremony with students receiving high school diplomas.
SECTIONi____.iiSubchapter B, Chapter 28, Education Code, is amended by adding Section 28.0252 to read as follows:
Sec.i28.0252.iiALTERNATIVE GRADUATION CRITERIA. (a) The commissioner by rule shall prescribe alternative graduation criteria that a student may meet to graduate and receive a diploma without complying with Section 39.025(a). The alternative graduation criteria must be compensatory criteria. The alternative graduation criteria must include a student's:
(1)iigrade point average beginning in grade 9;
(2)iicurrent class ranking;
(3)iiperformance on the individual assessment instruments specified in Section 39.025(a);
(4)iicombined scores, using only the student's highest scores, on the assessment instruments specified in Section 39.025(a); and
(5)iioverall academic performance beginning in grade 9, as evaluated by two or more of the student's teachers.
(b)iiA committee composed of the student's high school principal or the principal's designee and two certified teachers in the student's school district who teach at the high school level shall determine whether a student who has not complied with Section 39.025(a) has met the alternative graduation criteria prescribed under Subsection (a). The commissioner shall adopt rules relating to the selection and operation of a committee under this subsection, including the method by which the committee must notify the student and the student's high school registrar, or the person performing the duties of a registrar, of the committee's decision.
(c)iiA committee established under Subsection (b) shall determine whether a student who has not complied with Section 39.025(a) has met the alternative graduation criteria prescribed under Subsection (a):
(1)iifollowing the first administration to the student of the assessment instruments specified in Section 39.025(a);
(2)iion written request of the student's parent or guardian, not more than one time in each school year following the school year in which the assessment instruments specified in Section 39.025(a) are first administered to the student; and
(3)iiwhen the principal of the student's high school, or the principal's designee, determines that the student is within one month of completing each requirement for a high school diploma other than compliance with Section 39.025(a).
SECTIONi____.ii(a) Section 28.025, Education Code, as amended by this Act, and Section 28.0252, Education Code, as added by this Act, apply beginning with the 2004-2005 school year.
(b)iiNot later than June 1, 2004, the commissioner of education shall adopt rules as required by Sections 28.0252(a) and (b), Education Code, as added by this Act.
The amendments were read.
4030 78th Legislature — Regular Session 82nd Day
Senator Shapiro moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1108 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Shapiro, Chair; West, Staples, Nelson, and Janek.
SENATE BILL 929 WITH HOUSE AMENDMENTS
Senator Shapiro called SBi929 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer, Senator Armbrister in Chair, laid the bill and the House amendments before the Senate.
Amendment
Amend SB 929 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to regional education service centers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubchapter A, Chapter 8, Education Code, is amended by adding Section 8.008 to read as follows:
Sec.i8.008.iiAPPLICABILITY OF CERTAIN LAWS RELATING TO POLITICAL ACTIVITIES. A regional education service center and each center employee is subject to Chapter 556, Government Code, and for purposes of that chapter:
(1)iithe center is considered to be a state agency; and
(2)iieach center employee is considered to be a state employee.
SECTIONi2.iiSubchapter B, Chapter 8, Education Code, is amended by adding Section 8.056 to read as follows:
Sec.i8.056.iiLIMITATION ON COMPENSATION FOR CERTAIN SERVICES. A regional education service center that acts as a fiscal agent or broker in connection with an agreement between two school districts under Subchapter E, Chapter 41, may not, unless authorized in writing by the district receiving transferred funds in accordance with the agreement:
(1)iibe compensated by the districts in an amount that exceeds the administrative cost of providing the service; or
(2)iiotherwise retain for use by the center any amount other than the compensation permitted under Subdivision (1) from the funds transferred between the districts in accordance with the agreement.
Friday, May 30, 2003 SENATE JOURNAL 4031
SECTIONi3.ii(a) After consulting with the presiding officers of the standing committees in the senate and house of representatives responsible for public education or with one or more committee staff members designated for that purpose by the appropriate presiding officer, the 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;
(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)iiThe comptroller of public accounts shall provide to the presiding officers of the standing committees in the senate and house of representatives responsible for public education written notice of each meeting concerning the contract entered into under Subsection (a) of this section or the audit described by Subsection (a) of this section between the comptroller or staff members of the comptroller's office and the person with whom the comptroller contracts under Subsection (a) or that person's designee. Each presiding officer or one or more committee staff members designated for that purpose by the appropriate presiding officer is entitled to participate at each of those meetings.
4032 78th Legislature — Regular Session 82nd Day
(c)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.
(d)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.
SECTIONi4.iiEffective September 1, 2005, Chapter 8, Education Code, is repealed.
SECTIONi5.iiExcept as otherwise provided by this Act, this Act takes effect September 1, 2003.
Floor Amendment No. 1
Amend CSSB 929 as follows:
(1)iiIn SECTION 1 of the bill, in the introductory language (House committee report, page 1, line 5), strike "Section 8.008" and substitute "Sections 8.008 and 8.009".
(2)iiIn SECTION 1 of the bill, immediately following proposed Section 8.008, Education Code (House Committee Report, page 1, between lines 12 and 13), insert the following:
Sec.i8.009.iiSUNSET PROVISION. Notwithstanding any other law, regional education service centers are subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the regional education service centers are abolished and this chapter expires September 1, 2005. Review of regional education service centers under this section shall be conducted in conjunction with review of the agency under Section 7.004.
(3)iiStrike SECTIONS 3 and 4 of the bill (House committee report, page 2, line 3, through page 4, line 18).
(4)iiIn SECTION 5 of the bill (House committee report, page 4, line 19), strike "SECTION 5. Except as otherwise provided by this Act, this" and substitute "SECTION 3. This".
Floor Amendment No. 3
Amend CSSB 929 by adding the following appropriately numbered SECTION to the bill and renumbering the subsequent SECTIONS accordingly:
SECTIONi____.iiSubchapter A, Chapter 8, Education Code, is amended by adding Section 8.008 to read as follows:
Sec.i8.008.iiAPPLICABILITY OF LAWS RELATING TO CONFLICT OF INTEREST. (a) A member of the board of directors and the executive director of a regional education service center are each considered to be a local public official for purposes of Chapter 171, Local Government Code. For purposes of that chapter a member of the board of directors and the executive director of a regional education service center are each considered to have a substantial interest in a business entity if a person related to the member or the executive director in the third degree by
Friday, May 30, 2003 SENATE JOURNAL 4033
(b)iiA regional education service center is considered to be a political subdivision for purposes of Section 131.903, Local Government Code.
(c)iiTo the extent consistent with this section, if a law described by this section applies to a school district or the board of trustees of a school district, the law applies to a regional education service center and the board of directors and executive director of a regional education service center.
Floor Amendment No. 1 on Third Reading
On CSSB 929 on third reading, amend second reading Floor Amendment No. 1 as follows:
Insert the following at the end of Sec. 8009, as added by Floor Amendment No.i1, by Dutton:
To assist the commission in its review, the comptroller of public accounts shall conduct a review of the regional education centers, and report the results of the review to the commission before March 1, 2004. The comptroller of public accounts shall consult with the commission regarding the scope of the review. The report shall also be transmitted to the presiding officers of the standing committee in the senate and house of representatives responsible for public education.
The amendments were read.
Senator Shapiro moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 929 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Shapiro, Chair; Williams, Bivins, VanideiPutte, and Madla.
CONFERENCE COMMITTEE ON HOUSE BILL 2588
Senator Harris called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi2588 and moved that the request be granted.
The motion prevailed without objection.
4034 78th Legislature — Regular Session 82nd Day
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi2588 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Harris, Chair; Duncan, Madla, Lucio, and Brimer.
MESSAGE FROM THE HOUSE
HOUSE CHAMBER
Austin, Texas
May 30, 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 CONCURRED IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES:
HB 249 (non-record vote)
HB 948 (non-record vote)
HB 999 (non-record vote)
HB 1232 (non-record vote)
HB 1247 (House concurs by a vote of 145 yeas, 0 nays, 2 pnv)
HB 1268 (non-record vote)
HB 1517 (non-record vote)
HB 1534 (non-record vote)
HB 1575 (House concurs by a vote of 142 yeas, 0 nays, 2 pnv)
HB 1590 (non-record vote)
HB 1614 (House concurs by a vote of 141 yeas, 0 nays, 2 pnv)
HB 1621 (House concurs by a vote of 142 yeas, 0 nays, 2 pnv)
HB 1650 (House concurs by a vote of 143 yeas, 0 nays, 2 pnv)
HB 1660 (non-record vote)
HB 1661 (non-record vote)
HB 1696 (non-record vote)
HB 1733 (House concurs by a vote of 142 yeas, 0 nays, 2 pnv)
HB 1743 (non-record vote)
HB 1858 (House concurs by a vote of 146 yeas, 0 nays, 1 pnv)
HB 1895 (non-record vote)
HB 1940 (non-record vote)
HB 1971 (non-record vote)
HB 2343 (non-record vote)
HB 2400 (House concurs by a vote of 143 yeas, 0 nays, 2 pnv)
HB 2458 (non-record vote)
Friday, May 30, 2003 SENATE JOURNAL 4035
HB 2525 (non-record vote)
HB 2718 (non-record vote)
HB 2795 (House concurs by a vote of 142 yeas, 0 nays, 2 pnv)
HB 3061 (House concurs by a vote of 145 yeas, 0 nays, 2 pnv)
HB 3303 (House concurs by a vote of 142 yeas, 0 nays, 2 pnv)
HB 3325 (non-record vote)
HB 3563 (House concurs by a vote of 143 yeas, 0 nays, 2 pnv)
HB 3577 (non-record vote)
THE HOUSE HAS REFUSED TO CONCUR IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:
HB 109
House Conferees: Chavez - Chair/Griggs/Gutierrez/Mowery/Wilson/
HB 1082
House Conferees: Talton - Chair/Christian/Ellis/Hegar/Reyna/
HB 2424
House Conferees: McCall - Chair/Keffer, Jim/Paxton/Pitts/Ritter/
HB 2455
House Conferees: Chisum - Chair/Berman/Hupp/McCall/Solomons/
HB 2533
House Conferees: Brown, Betty - Chair/Casteel/Flynn/Lewis/Smith, Wayne/
HB 3035
House Conferees: Cook, Robby - Chair/Campbell/Hilderbran/Hope/Puente/
THE HOUSE HAS GRANTED THE REQUEST OF THE SENATE FOR THE APPOINTMENT OF A CONFERENCE COMMITTEE ON THE FOLLOWING MEASURES:
SB 1413
House Conferees: Hardcastle - Chair/Brown, Betty/Howard/Miller/Wise/
Respectfully,
/s/Robert Haney, Chief Clerk
House of Representatives
SENATE BILL 1131 WITH HOUSE AMENDMENTS
Senator Harris called SBi1131 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer, Senator Armbrister in Chair, laid the bill and the House amendments before the Senate.
Floor Amendment No. 1
Amend SB 1131 as follows:
(1) On page 1, line 10, strike "an account" and substitute "a dedicated account".
(2) On page 2, line 3, strike "$500,000" and substitute "$300,000".
4036 78th Legislature — Regular Session 82nd Day
(3) On page 2, line 6, strike "50" and substitute "25".
(4) On page 3, line 10, strike "20" and substitute "3".
(5) On page 4, line 7, add "to reimburse for direct services" after "year".
(6) On page 4, line 21, strike "27" and substitute "72".
Floor Amendment No. 2
Amend SB 1131 as follows:
(1) In Section 4 of the bill, between proposed Subsections (e) and (f), Article 102.0185, Code of Criminal Procedure (House committee report, page 7, between lines 12 and 13), insert the following:
(f) A municipality or county that keeps records and remits money collected under this article as required by Subsection (e) may retain:
(1) 10 percent of the money collected to cover the municipality's or county's costs in collecting the costs under this article; and
(2) any interest earned on that money before the money is remitted to the comptroller.
(2) In Section 4 of the bill, in proposed Subsection (f), Article 102.0185, Code of Criminal Procedure (House committee report, page 7, line 13), strike "(f)" and substitute "(g)".
The amendments were read.
Senator Harris moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1131 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Harris, Chair; Janek, Lucio, Lindsay, and Deuell.
CONFERENCE COMMITTEE ON HOUSE BILL 1606
Senator Ellis called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1606 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1606 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Ellis, Chair; Brimer, Whitmire, Ogden, and Ratliff.
Friday, May 30, 2003 SENATE JOURNAL 4037
SENATE BILL 1828 WITH HOUSE AMENDMENT
Senator Averitt called SBi1828 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 1828 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the composition and duties of the State Soil and Water Conservation Board.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 201.011, Agriculture Code, is amended to read as follows:
Sec.i201.011.iiCOMPOSITION. (a) The State Soil and Water Conservation
Board is a state agency composed of seven [five] members as follows:
(1)ii[, with] one member elected from each of the state districts in
accordance with this subchapter; and
(2)iitwo members appointed by the governor, each of whom is:
(A)iiactively engaged in the business of farming, animal husbandry, or other business related to agriculture and who wholly or partly owns or leases land used in connection with that business; and
(B)iinot a member of the board of directors of a conservation district, but meets the qualifications listed under Section 201.072.
(b)iiFor the purposes of this section, the term "actively engaged" refers to a person who derives at least 51 percent of the person's income from farming, animal husbandry, or other business related to agriculture and who wholly or partly owns land used in connection with that business.
SECTIONi2.iiSection 201.015(b), Agriculture Code, is amended to read as follows:
(b)iiThe term of office of an elected [a] member of the state board begins on the
day after the day on which the member was elected. The term of one member
appointed by the governor expires February 1 of each odd-numbered year, and the
term of the other member appointed by the governor expires February 1 of each
even-numbered year.
SECTIONi3.iiSubchapter B, Chapter 201, Agriculture Code, is amended by adding Section 201.0152 to read as follows:
Sec.i201.0152.iiAPPLICATION. Sections 201.0141, 201.0142, and 201.0151 apply to the governor's appointees under this chapter.
SECTIONi4.iiSections 201.016, Agriculture Code, is amended to read as follows:
Sec.i201.016.iiVACANCY. Vacancies in the state district positions on the state board are filled by election in the manner provided by this subchapter for an unexpired term or for a full term.
SECTIONi5.iiSection 201.019(a) and (d), Agriculture Code, are amended to read as follows:
(a)iiThe state board shall designate one of its elected members as chairman.
4038 78th Legislature — Regular Session 82nd Day
(d)iiThe state board may delegate any power or duty under this chapter to its chairman, one or more of its elected members, or one of more of its agents or employees.
SECTIONi6.iiSubchapter B, Chapter 201, Agriculture Code, is amended by adding Sections 201.028 and 201.029 to read as follows:
Sec.i201.028.iiSEMIANNUAL REPORT. Not later than January 1 and July 1 of each year, the state board shall prepare and deliver to the governor, the lieutenant governor, and the speaker of the house of representatives a report relating to the status of the board's activities, including outreach programs, grants made and received, federal funding applied for and received, any special projects, and the board's oversight of water conservation district activities.
Sec.i201.029.iiMANAGEMENT AUDIT. (a) Not later than March 1, 2004, the state auditor, in coordination with the Legislative Budget Board, shall conduct a management audit of the state board and deliver a report of the audit to the governor, the lieutenant governor, and the speaker of the house of representatives. The audit must include an evaluation of the state board's administrative budget.
(b)iiThis section expires April 1, 2004.
SECTIONi7.iiSections 203.011, 203.012, 203.013, 203.016, and 203.051, Agriculture Code, are amended to read as follows:
Sec.i203.011.iiAUTHORITY OF BOARD. The board has jurisdiction over and, with the assistance of local districts, shall administer the brush control program under this chapter.
Sec.i203.012.iiRULES. The board, after consulting with local districts, shall adopt reasonable rules that are necessary to carry out this chapter.
Sec.i203.013.iiAUTHORITY OF DISTRICTS. Each district [in which all or
part of a critical area is located] may carry out the responsibilities provided by
Subchapter D [of this code] as delegated by the board [in that critical area].
Sec.i203.016.iiCONSULTATION. The State Soil and Water Conservation Board
[board] shall consult with:
(1)iithe Texas Water Development Board in regard to the effects of the brush control program on water quantity;
(2)iithe department in regard to the effects of the brush control program on agriculture; and
(3)iithe Parks and Wildlife Department in regard to the effects of the brush control program on fish and wildlife.
Sec.i203.051.iiSTATE PLAN. The board shall prepare and adopt a state brush control plan that shall:
(1)iiinclude a comprehensive strategy for managing brush in all areas of the state where brush is contributing to a substantial water conservation problem; and
(2)iirank [designate] areas of [critical need in] the state in need of a [which to
implement the] brush control program, as provided by Section 203.053.
SECTIONi8.iiSections 203.052(b), (c), and (d), Agriculture Code, are amended to read as follows:
(b)iiNot less than 30 days before the date the hearing is to be held, the board shall mail written notice of the hearing to each district in the state. The notice must:
(1)iiinclude the date and place for holding the hearing;
Friday, May 30, 2003 SENATE JOURNAL 4039
(2)ii[and must] state the purpose for holding the hearing; and
(3)iiinclude instructions for each district to submit written comments on the proposed plan.
(c)iiAt the hearing, representatives of a district and any other person may appear and present testimony including information and suggestions for any changes in the proposed plan. The board shall enter into the record any written comments received on the proposed plan and shall consider all written comments and testimony before taking final action on the plan.
(d)iiAfter the conclusion of the hearing, the board shall consider the testimony,
including the information and suggestions made at the hearing and in written
comments, and[,] after making any changes in the proposed plan that it finds
necessary, the board shall adopt the plan.
SECTIONi9.iiSections 203.053, 203.055, and 203.101, Agriculture Code, are amended to read as follows:
Sec.i203.053.iiCRITERIA FOR EVALUATING BRUSH CONTROL
[DESIGNATING CRITICAL] AREAS. (a) In ranking [designating critical] areas
under the plan, the board shall consider:
(1)iithe location of various brush infestations;
(2)iithe type and severity of [various] brush infestations;
(3)iithe various management methods that may be used to control brush;
[and]
(4)iithe amount of water produced by a project and the severity of water shortage in the project area; and
(5)iiany other criteria that the board considers relevant to assure that the brush control program can be most effectively, efficiently, and economically implemented.
(b)iiIn ranking [designating critical] areas, the board shall give priority to areas
with the most critical water conservation needs and in which brush control and
revegetation projects will be most likely to produce substantial water conservation.
Sec.i203.055.iiAPPROVED METHODS FOR BRUSH CONTROL. (a) The
board shall study and must approve all methods used to control brush under this
chapter [Act] considering the overall impact of the project [will have within critical
areas].
(b)iiThe board may approve a method for use under the cost-sharing program
provided by Subchapter E [of this chapter] if the board finds that the proposed
method:
(1)iihas proven to be an effective and efficient method for controlling brush;
(2)iiis cost efficient;
(3)iiwill have a beneficial impact on the development of water sources and wildlife habitat;
(4)iiwill maintain topsoil to prevent erosion or silting of any river or stream; and
(5)iiwill allow the revegetation of the area after the brush is removed with plants that are beneficial to stream flows, groundwater levels, and livestock and wildlife.
4040 78th Legislature — Regular Session 82nd Day
Sec.i203.101.iiGENERAL AUTHORITY. Each district may administer the
aspects of the brush control program [within any critical area located] within the
jurisdiction of that district.
SECTIONi10.iiSection 203.154, Agriculture Code, is amended by amending Subsections (a) and (c) and adding Subsections (d) and (e) to read as follows:
(a)iiNot more than 70 [80] percent of the total cost of a single brush control
project may be made available as the state's share in cost sharing.
(c)iiThe board may grant an exception to Subsection (b) [of this section] if the
board finds that joint participation of the state brush control program and any federal
brush control program will:
(1)iienhance the efficiency and effectiveness of a project; [and]
(2)iilessen the state's financial commitment to the project; and
(3)iinot exceed 80 percent of the total cost of the project.
(d)iiA political subdivision is eligible for cost sharing under the brush control program, provided that the state's share may not exceed 50 percent of the total cost of a single project.
(e)iiNotwithstanding any other provision of this section, 100 percent of the total cost of a single project on public lands may be made available as the state's share in cost sharing.
SECTIONi11.iiSections 203.156, 203.157, and 203.158, Agriculture Code, are amended to read as follows:
Sec.i203.156.iiAPPLICATION FOR COST SHARING. A person, including a
political subdivision, that [who] desires to participate with the state in a brush control
project and to obtain cost-sharing participation by the state shall file an application
with the district board in the district in which the land on which the project is to be
accomplished is located. The application must be in the form provided by board rules.
Sec.i203.157.iiCONSIDERATIONS IN PASSING ON APPLICATION. In passing on an application for cost sharing, the board shall consider:
(1)iithe location of [whether] the project [is to be carried out in a critical
area];
(2)iithe method of control that is to be used by the project applicant;
(3)iithe plans for revegetation;
(4)iithe total cost of the project;
(5)iithe amount of land to be included in the project;
(6)iiwhether the applicant for the project is financially able to provide the
applicant's [his] share of the money for the project;
(7)iithe cost-share percentage, if an applicant agrees to a higher degree of financial commitment;
(8)iiany comments and recommendations submitted by a local district, the
department, the Texas Water Development Board, or [of] the Parks and Wildlife
Department; and
(9)iiany other pertinent information considered necessary by the board.
Sec.i203.158.iiAPPROVAL OF APPLICATION. The board may approve an
application if, after considering the factors listed in Section 203.157 [of this code] and
any other relevant factors, the board finds:
(1)iithe owner of the land fully agrees to cooperate in the project;
Friday, May 30, 2003 SENATE JOURNAL 4041
(2)iithe method of eradication is a method approved by the board under
Section 203.055 [of this code]; and
(3)iithe project is a higher priority than other projects submitted in
accordance with [to be carried out in a critical area designated under] the board's plan.
SECTIONi12.iiSections 203.159(a) and (c), Agriculture Code, are amended to read as follows:
(a)iiIf the demand for funds under the cost-sharing program is greater than funds
available, the board shall [may] establish priorities favoring the areas with the most
critical water conservation needs and projects that will be most likely to produce
substantial water conservation.
(c)iiThe quantity of stream flows or groundwater or [amount of land dedicated to
the project that will produce significant] water conservation from the eradication of
brush is a consideration in assigning priority.
SECTIONi13.ii(a) Section 203.001(5), Agriculture Code, is repealed.
(b)iiSection 203.155, Agriculture Code, is repealed.
SECTIONi14.iiIn making initial appointments to the State Soil and Water Conservation Board under Section 201.011, Agriculture Code, as amended by this Act, the governor shall designate one member to serve a term expiring February 1, 2004, and one member to serve a term expiring February 1, 2005.
SECTIONi15.iiThe State Soil and Water Conservation Board shall prepare and deliver the first report required by Section 201.028, Agriculture Code, as added by this Act, not later than January 1, 2004.
SECTIONi16.iiThis Act takes effect September 1, 2003.
The amendment was read.
Senator Averitt moved that the Senate do not concur in the House amendment, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1828 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Averitt, Chair; Duncan, Bivins, Ellis, and Armbrister.
SENATE BILL 1664 WITH HOUSE AMENDMENTS
Senator Averitt called SBi1664 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.
4042 78th Legislature — Regular Session 82nd Day
Amendment
Amend SB 1664 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to private activity bonds.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 1372.001, Government Code, is amended by adding Subdivision (18) to read as follows:
(18)ii"Water development issue" means a bond issued as part of an issue of which 95 percent or more of the net proceeds are to be used to provide facilities for furnishing water, conserving water, developing water resources, or making water available.
SECTIONi2.iiSections 1372.006(a) and (b), Government Code, are amended to read as follows:
(a)iiAn application for a reservation under Subchapter B or a carryforward designation under Subchapter C must be accompanied by a nonrefundable fee in the amount of $500, except that for issuers of qualified residential rental project bonds the application must be accompanied by a nonrefundable fee of $5,000, of which the board shall retain $1,000 to offset the costs of the private activity bond allocation program and the administration of that program and of which the board shall transfer $4,000 through an interagency agreement to the Texas Department of Housing and Community Affairs for use in the affordable housing research and information program as provided by Section 2306.259.
(b)iiAn issuer, other than an issuer under Section 1372.022(a)(2), shall submit to the board a closing fee in an amount that is equal to the greater of:
(1)ii$1,000; or
(2)ii0.025 percent of the principal amount of the bonds certified as provided by Section 1372.039(a)(1).
SECTIONi3.iiSection 1372.022, Government Code, as amended by Chapters 1367, 1420, and 1468, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:
Sec.i1372.022.iiAVAILABILITY OF STATE CEILING TO ISSUERS. (a) [Prior
to August 15 of each year through September 1, 2003:
[(1)ii25 percent of the state ceiling is available exclusively for reservations
by issuers of qualified mortgage bonds;
[(2)ii11 percent of the state ceiling is available exclusively for reservations
by issuers of state-voted issues;
[(3)ii7.5 percent of the state ceiling is available exclusively for reservations
by issuers of qualified small issue bonds and enterprise zone facility bonds;
[(4)ii16.5 percent of the state ceiling is available exclusively for reservations
by issuers of qualified residential rental projects bonds;
[(5)ii10.5 percent of the state ceiling is available exclusively for reservations
by issuers of qualified student loan bonds authorized by Section 53.47, Education
Code; and
Friday, May 30, 2003 SENATE JOURNAL 4043
[(6)ii29.5 percent of the state ceiling is available exclusively for reservations
by any other issuer of bonds that require an allocation. The board shall issue 2 percent
of the allocation based on a priority level for projects for the development of new
drinking water sources.
[(b)]iiIf the state ceiling is computed on the basis of $75 per capita or a greater
amount, before August 15 of each year:
(1)ii28.0 [29.6] percent of the state ceiling is available exclusively for
reservations by issuers of qualified mortgage bonds;
(2)ii8 percent of the state ceiling is available exclusively for reservations by issuers of state-voted issues;
(3)ii2.0 [4.6] percent of the state ceiling is available exclusively for
reservations by issuers of qualified small issue bonds and enterprise zone facility
bonds;
(4)ii22.0 [23] percent of the state ceiling is available exclusively for
reservations by issuers of qualified residential rental project bonds;
(5)ii10.5 [8.8] percent of the state ceiling is available exclusively for
reservations by issuers of qualified student loan bonds authorized by Section 53.47,
Education Code, that are nonprofit corporations able to issue a qualified scholarship
funding bond as defined by Section 150(d)(2), Internal Revenue Code (26 U.S.C.
Section 150(d)(2)); and
(6)ii29.5 [26] percent of the state ceiling is available exclusively for
reservations by any other issuer of bonds that require an allocation.
(b)iiOn and after August 15 but before September 1, that portion of the state
ceiling available for reservations becomes available for all applications for
reservations in the order determined by the board by lot, subject to Section 1372.0321
[qualified residential rental project issues in the manner described by Section
1372.0321]. On and after September 1, that portion of the state ceiling available for
reservations becomes available to any issuer for any bonds that require an allocation,
subject to the provisions of this subchapter.
[(c)iiThis section expires September 1, 2003.]
SECTIONi4.iiSection 1372.0231, Government Code, is amended by amending Subsections (b), (c), (d), (e), and (f) and adding Subsections (h) and (i) to read as follows:
(b)iiWith respect to the amount of the state ceiling set aside under Subsection (a)(1), the board shall grant reservations, subject to Sections 1372.0321(a) and (b):
(1)iiin the order determined by the board by lot; and
(2)iiin a manner that ensures that:
(A)iithe set-aside amount is used for proposed projects that are located throughout the state; and
(B)iinot more than 50 percent of the set-aside amount is used for proposed projects that are located in qualified census tracts as defined by Section 143(j), Internal Revenue Code of 1986.
(c)iiWith respect to the amount of the state ceiling set aside under Subsection (a)(2), the board shall grant reservations in a manner that ensures that not more than 50 percent of the set-aside amount is used for proposed projects that are located in
4044 78th Legislature — Regular Session 82nd Day
(d)iiExcept as provided by Subsection (i), before [Before] June 1, the board shall
apportion the amount of the state ceiling set aside under Subsection (a)(2) among the
uniform state service regions according to the percentage of the state's population that
resides in each of those regions.
(e)iiUntil May 15 of each year, for each of [For] the uniform state service regions
containing Austin, Dallas, or [and] Houston, the board shall reserve $15 million of the
state ceiling set aside for the region under Subsection (d) for the areas in the region
that are located [additionally apportion the amount of the state ceiling set aside for
each of those regions under Subsection (d) within the region according to the
percentage of the region's population that resides in a metropolitan statistical area and
the percentage of the region's population that resides] outside of a metropolitan
statistical area.
(f)iiIn each area described by Subsection (d) or (e), the board shall grant
reservations based on the priority levels of proposed projects as described by Section
1372.0321 [1372.032].
(h)iiAn application by an issuer of qualified residential rental project bonds that is submitted after the deadline for eligibility to participate in the lottery has a priority lower than that of every application submitted before that date.
(i)iiBefore June 1, the board shall apportion the amount of the state ceiling set aside under Subsection (a)(2) only among uniform state service regions with respect to which an issuer has submitted an application for a reservation of the state ceiling on or before March 1.
SECTIONi5.iiSections 1372.024(a) and (b), Government Code, are amended to read as follows:
(a)iiIf, before January 2, applications received for reservations for state-voted
issues total more than eight [13] percent of the available state ceiling for that program
year, the percentage of state-voted ceiling requested that is more than eight [13]
percent of the state ceiling:
(1)iiis removed from the state ceiling available to other issuers on January 2; and
(2)iiis available for those applications for reservations for state-voted issues.
(b)iiThe amount removed under Subsection (a) may not exceed eight [4.5]
percent of the state ceiling.
SECTIONi6.iiSection 1372.027, Government Code, is amended to read as follows:
Sec.i1372.027.iiPUBLICATION OF AVAILABLE STATE CEILING. The board
shall publish at least weekly on its Internet site [biweekly in the Texas Register]:
(1)iia statement of the amount of the available state ceiling;
(2)iia list of the issues that have received a reservation since the preceding publication, including the amount of each reservation; and
(3)iia list of the issues that had previously received a reservation that have closed since the preceding publication.
Friday, May 30, 2003 SENATE JOURNAL 4045
SECTIONi7.iiSection 1372.028, Government Code, is amended by amending Subsection (b) and adding Subsection (e) to read as follows:
(b)iiAn issuer may apply for a reservation for a program year not earlier than
October 5 [10] of the preceding year. An issuer may not submit an application for a
program year after December 1 of that year.
(e)iiIf an issuer applied the previous year for a reservation for qualified mortgage bonds and has not received the reservation at the time of application for the lottery, the issuer, instead of filing a complete application under Subsection (c), may file a statement explaining whether there are any changes in information from the application information filed the previous year. If there are changes, the statement must specify the current information. An issuer that files a statement under this subsection must pay the same application fee required for a complete application.
SECTIONi8.iiSubchapter B, Chapter 1372, Government Code, is amended by adding Section 1372.0281 to read as follows:
Sec.i1372.0281.iiINFORMATION REQUIRED OF ISSUERS OF CERTAIN QUALIFIED STUDENT LOAN BONDS. (a) An issuer of qualified student loan bonds authorized by Section 53.47, Education Code, shall provide to the board together with its application for a reservation information required by board rule.
(b)iiThe board may require an issuer described by Subsection (a) to provide information with its application, or to supplement the application with information, that includes:
(1)iifinancial statements;
(2)iiportfolio amounts;
(3)iidefault rates;
(4)iidescriptions of how student loans are being used or spent; and
(5)iiinformation about the issuer's client agencies.
SECTIONi9.iiSection 1372.031, Government Code, is amended to read as follows:
Sec.i1372.031.iiPRIORITIES FOR RESERVATIONS AMONG CERTAIN
ISSUERS. Subject to Sections [Section] 1372.0321 and 1372.0231, if, on or before
October 20, more than one issuer in a category described by Section 1372.022(a)(2),
(3), (4), or (6) applies for a reservation of the state ceiling for the next program year,
the board shall grant reservations in that category in the order determined by the board
by lot.
SECTIONi10.iiSection 1372.0321, Government Code, as added by Chapters 1367 and 1420, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows:
Sec.i1372.0321.iiPRIORITIES FOR RESERVATIONS AMONG ISSUERS OF
QUALIFIED RESIDENTIAL RENTAL PROJECT ISSUES. (a) In granting
reservations to issuers of qualified residential rental project issues, the board shall[:
[(1)]iigive first priority to:
(1)i[(A)]iiprojects in which:
(A)ii50i[100]iipercent of the residential units in the project [projects]
are:
4046 78th Legislature — Regular Session 82nd Day
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 50 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 50 percent of the area median income; and
(B)iithe remaining 50 percent of the residential units in the project are:
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 60 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 60 percent of the area median income;
(2)iiprojects in which:
(A)ii15 percent of the residential units in the project are:
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 30 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 30 percent of the area median income; and
(B)iithe remaining 85 percent of the residential units in the project are:
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 60 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 60 percent of the area median income;
(3)iiprojects:
(A)iiin which 100 percent of the residential units in the project are:
(i)iiunder the restriction that the maximum allowable rents are an amount equal to 30 percent of 60 percent of the area median family income minus an allowance for utility costs authorized under the federal low-income housing tax credit program; and
(ii)iireserved for families and individuals earning not more than 60 percent of the area median income; and
(B)iiwhich are located in a census tract in which the median income, based on the most recent information published by the Bureau of the Census, is higher than the median income for the county, metropolitan statistical area, or primary metropolitan statistical area in which the census tract is located as established by the United States Department of Housing and Urban Development; or
(4)i[(B)]iion or after June 1, projects that are located in counties,
metropolitan statistical areas, or primary metropolitan statistical areas with area
median family incomes at or below the statewide median family income established
by the United States Department of Housing and Urban Development.
Friday, May 30, 2003 SENATE JOURNAL 4047
(a-1)iiIn granting reservations to issuers of qualified residential rental project
issues, the board shall [;
[(2)]iigive second priority to projects in which 100 percent of the residential
units in the project [projects] are under the restriction that the maximum allowable
rents are an amount equal to 30 percent of 60 percent of the area median family
income minus an allowance for utility costs authorized under the federal low-income
housing tax credit program.
(a-2)iiIn granting reservations to issuers of qualified residential rental project
issues, the board shall [; and
[(3)]iigive third priority to any other qualified residential rental project.
(b)iiThe board may not reserve a portion of the state ceiling for a first or second
priority project described by this section [Subsection (a)] unless the board receives
evidence that an application has been filed with the Texas Department of Housing and
Community Affairs for the low-income housing tax credit that is available for
multifamily transactions that are at least 51 percent financed by tax-exempt private
activity bonds.
SECTIONi11.iiSection 1372.033, Government Code, is amended to read as follows:
Sec.i1372.033.iiPRIORITIES FOR RESERVATIONS AMONG CERTAIN ISSUERS OF QUALIFIED STUDENT LOAN BONDS. (a) In this section:
(1)ii"Additional need" means the additional need of a qualified nonprofit corporation determined by subtracting the floor allocation for that qualified nonprofit corporation from that corporation's annual need.
(2)ii"Annual need" means, for a qualified nonprofit corporation, one-half of the total principal amount of Texas eligible loans the qualified nonprofit corporation purchased in the two most recently completed fiscal years ending June 30.
(3)ii"Floor allocation" means, for a qualified nonprofit corporation, an allocation in the amount of the lesser of $27 million or the qualified nonprofit corporation's annual need.
(4)ii"Qualified nonprofit corporation" has the meaning assigned by Section 53.47, Education Code.
(5)ii"Remaining amount to be allocated" is the total amount to be allocated under Section 1372.022(a)(5) in a calendar year less the sum of the floor allocations of the qualified nonprofit corporations that have applied for a student loan bond allocation for the calendar year.
(6)ii"Student loan bond allocation" means an allocation for private activity bonds under Section 1372.022(a)(5).
(7)ii"Texas eligible loan" means a Texas loan purchased from the originating lender by a nonprofit corporation acting as described by Section 53.47(g), Education Code.
(8)ii"Texas loan" means a guaranteed student loan, as defined by Section 53.47, Education Code, made on behalf of a borrower who is:
(A)iia resident of this state; or
(B)iia student attending an accredited institution, as defined by Section 53.47, Education Code, that is located in this state.
4048 78th Legislature — Regular Session 82nd Day
(9)ii"Total amount to be allocated" means the total available under Section 1372.022(a)(5) for all applicants.
(b)iiOnly a qualified nonprofit corporation may apply for a student loan bond allocation.
(c)iiAn application for a student loan bond allocation must include a statement as provided by this subsection. The statement must be certified by an officer of the applicant, whose signature must be notarized. The statement must be audited by an independent auditor, and the report of the independent auditor must be attached to the statement. The statement must list:
(1)iithe principal amount of Texas eligible loans the applicant purchased in the two most recently completed fiscal years ending June 30;
(2)iithe agencies that are guaranteeing the Texas eligible loans listed and the amount of Texas eligible loans guaranteed by each agency;
(3)iithe originating lenders from whom the Texas eligible loans were purchased and the amount of Texas eligible loans each originating lender sold; and
(4)iithe date of each purchase transaction.
(d)iiEach qualified nonprofit corporation that applies for a student loan bond allocation in compliance with all applicable application requirements is entitled to receive a floor allocation except as provided by this section. If the total amount to be allocated is less than the sum of the floor allocations for all of the applicants, each applicant is entitled to a proportion of the total amount to be allocated equal to the proportion its floor allocation bears to the total of the floor allocation for all of the applicants. A qualified nonprofit corporation whose annual need is zero is not entitled to apply for a student loan bond allocation.
(e)iiIf, after allocations are computed under Subsection (d), there is a remaining amount to be allocated and there are one or more applicants with additional need, each applicant with additional need is entitled to a proportion of the remaining amount to be allocated equal to the proportion the applicant's additional need bears to the total of the additional need of all applicants but not to exceed the amount of the applicant's additional need. Any amount remaining after distribution to applicants with additional need shall be allocated in equal amounts to the other applicants that have a floor allocation of greater than $27 million.
(f)iiNotwithstanding Subsection (e), if an applicant's share of the remaining amount to be allocated is greater than 50 percent, that applicant is entitled to 50 percent of the remaining amount to be allocated. The other 50 percent of the remaining amount to be allocated shall be distributed to the other applicants in proportion to their unmet additional need, except that the allocations may not exceed, for any applicant, the additional need of the applicant. If, after the additional needs of the other applicants are met, there remains any amount of the remaining amount to be allocated available for distribution, that amount shall be distributed to the applicant with the share of more than 50 percent of the remaining amount to be allocated in an amount not to exceed the amount of the applicant's additional need.
(g)iiA qualified nonprofit corporation that receives a student loan bond allocation may not:
(1)iitransfer the allocation to another entity; or
Friday, May 30, 2003 SENATE JOURNAL 4049
(2)iiloan to another entity other than a student proceeds of bonds issued
under the allocation [If, on or before October 20, more than one issuer authorized by
Section 53.47, Education Code, to issue qualified student loan bonds applies for a
reservation of the state ceiling for qualified student loan bonds for the next program
year, the board shall grant reservations in that category in reverse order of the date of
the most recent closing of qualified student loan bonds by each issuer. The issuer that
had the most recent closing shall be the last to receive a reservation.
[(b)iiIf closings occurred on the same date, the board shall grant reservations in
the order determined by the board by lot.
[(c)iiThe board shall grant a reservation to an issuer described by Subsection (a)
in an amount not to exceed the lesser of:
[(1)ii$35 million;
[(2)iithe full amount of the state ceiling for qualified student loan bonds for
which the issuer applied; or
[(3)iithe amount of the state ceiling for qualified student loan bonds
remaining after reservations have been granted to issuers with a higher priority under
Subsection (a).
[(d)iiNotwithstanding Subsection (c)(1) or Section 1372.037(5), after each issuer
described by Subsection (a) that applies for a reservation has been offered a
reservation in the maximum amount available to the issuer, the board shall grant in
equal portions, as additional reservations, any remaining amount of the state ceiling
for qualified student loan bonds to issuers that:
[(1)iireceived and accepted a reservation; and
[(2)iido not refuse an additional reservation under this subsection].
SECTIONi12.iiSection 1372.036(b), Government Code, is amended to read as follows:
(b)iiBeginning [If, after] June 1 [and before August 25], partial reservations may
be offered once to each applicant in each [any portion of the state ceiling in a]
category described by Section 1372.022(a) until an applicant in the category accepts
the partial reservation or until additional volume is returned in an amount sufficient to
grant a full reservation [from which issuers were granted reservations becomes
available in that category:
[(1)iithose amounts of the state ceiling shall be aggregated; and
[(2)iithe board shall grant reservations from that category on August 25].
SECTIONi13.iiSection 1372.037, Government Code, is amended to read as follows:
Sec.i1372.037.iiLIMITATIONS ON GRANTING OF RESERVATIONS FOR
INDIVIDUAL PROJECTS. (a) Except as provided by Subsection (b), before
[Before] September 1[, for any one project,] the board may not grant for any single
project a reservation for that year that is greater than:
(1)ii$25 million, if the issuer is an issuer of qualified mortgage bonds, other than the Texas Department of Housing and Community Affairs;
(2)ii$50 million, if the issuer is an issuer of a state-voted issue, other than the Texas Higher Education Coordinating Board, or $75 million, if the issuer is the Texas Higher Education Coordinating Board;
4050 78th Legislature — Regular Session 82nd Day
(3)iithe amount to which the Internal Revenue Code limits issuers of qualified small issue bonds and enterprise zone facility bonds, if the issuer is an issuer of those bonds;
(4)iithe lesser of $15 million or 15 percent of the amount set aside for reservation by issuers of qualified residential rental project bonds, if the issuer is an issuer of those bonds;
(5)ii$35 million, if the issuer is an issuer authorized by Section 53.47, Education Code, to issue qualified student loan bonds; or
(6)ii$25 million, if the issuer is any other issuer of bonds that require an allocation.
(b)iiIn addition to a reservation under Subsection (a)(2), the board may grant to the Texas Water Development Board a reservation for not more than $100 million of the available state ceiling for a water development issue.
SECTIONi14.iiSection 1372.039, Government Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:
(a)iiNot later than the 35th day after an issuer's reservation date, the issuer shall submit to the board:
(1)iia certificate signed by an authorized representative of the issuer that certifies the principal amount of the bonds to be issued; and
(2)iia list of finance team members and their addresses and telephone numbers.
(d)iiIf an issuer does not submit the documents during the period provided by Subsection (a), the issuer may submit the documents not later than the third day after the end of the 35-day period together with a statement and evidence regarding extenuating circumstances that prevented a timely filing. The board shall review the statement and the evidence and may, based on the statement and evidence, permit the late filing.
SECTIONi15.iiSection 1372.040, Government Code, is amended to read as follows:
Sec.i1372.040.iiRESERVATION BY CERTAIN ISSUERS OF QUALIFIED MORTGAGE BONDS OF MONEY FOR MORTGAGES FOR CERTAIN PERSONS. An issuer of qualified mortgage bonds, other than the Texas Department of Housing and Community Affairs or the Texas State Affordable Housing Corporation, shall reserve for six months 50 percent of the funds available for loans outside the federally designated target areas to provide mortgages to individuals and families with incomes below 80 percent of the applicable median family income, as defined by Section 143(f)(4), Internal Revenue Code (26 U.S.C. Section 143(f)(4)).
SECTIONi16.iiSection 1372.042, Government Code, is amended by amending Subsections (a), (b), and (c) and adding Subsection (a-1) to read as follows:
(a)iiAn issuer other than an issuer of qualified residential rental project bonds, an issuer of state-voted issues, or an issuer of qualified mortgage bonds shall close on the bonds for which the reservation was granted not later than the 120th day after the reservation date.
(a-1)iiAn issuer of qualified residential rental project bonds shall close on the bonds for which the reservation was granted not later than the 150th day after the reservation date. If an issuer of qualified residential rental project bonds fails to close
Friday, May 30, 2003 SENATE JOURNAL 4051
(b)iiAn issuer of state-voted issues or an issuer of qualified mortgage revenue bonds shall close on the bonds for which the reservation was granted not later than the 180th day after the reservation date.
(c)iiNotwithstanding Subsections (a), (a-1), and (b), if the 120-day period, the 150-day period, or the 180-day period, as applicable, expires on or after December 24 of the year in which the reservation was granted, the issuer shall close on the bonds before December 24, except that if the applicable period expires after December 31 of that year, the issuer may notify the board in writing before December 24 of the issuer's election to carry forward the reservation and of the issuer's expected bond closing date. In compliance with the requirements of Section 146(f), Internal Revenue Code of 1986, the board shall file in a timely manner a carryforward election with respect to any bonds expected to close after December 31 to permit the bonds to close by the expected date, except that the board may not file the carryforward election after February 15 of the year following the year in which the reservation was granted. The grant of the reservation for the balance of the 120-day period, the 150-day period, or the 180-day period, as applicable, is automatically and immediately reinstated on the board's filing of a carryforward election with respect to the reservation.
SECTIONi17.iiSubchapter K, Chapter 2306, Government Code, is amended by adding Section 2306.259 to read as follows:
Sec.i2306.259.iiAFFORDABLE HOUSING RESEARCH AND INFORMATION PROGRAM. With money available under Section 1372.006(a), the department shall establish an affordable housing research and information program in which the department shall contract for:
(1)iiperiodic market studies to determine the need for housing for families of extremely low, very low, and low income in census tracts throughout the state;
(2)iiresearch from qualified professionals to determine the effect of affordable housing developments on property values, social conditions, and quality of life in surrounding neighborhoods;
(3)iiindependent research in affordable housing design and development approaches that enhance community acceptance of affordable housing and improve the quality of life for the residents of the housing; and
(4)iipublic education and outreach efforts to assist the public in understanding the nature and purpose of affordable housing and the process for public participation in the administration of affordable housing programs.
SECTIONi18.iiSection 53.47(k), Education Code, is repealed.
SECTIONi19.iiThis Act takes effect September 1, 2003. Except for the changes in law made by this Act to Sections 1372.0231(f), 1372.027, and 1372.036(b), Government Code, the changes in law made by this Act apply only in relation to a reservation of the state ceiling that will be granted on or after January 1, 2004.
Floor Amendment No. 1
Amend CSSB 1664 (House committee printing), on page 17, line 11, by striking the words "35 million" and substituting "the amount as prescribed in 1372.033(d), (e), and (f)".
4052 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 2
Amend CSSB 1664 in Section 4 of the bill by striking amended Subsection (b), Section 1372.0231, Government Code (House committee printing, page 4, lines 10-20), and substituting:
(b) With respect to the amount of the state ceiling set aside under Subsection
(a)(1), subject to Sections 1372.0321(a) and (b), the board shall grant reservations[:
[(1) in the order determined by the board by lot; and
[(2)] in a manner that ensures that:
(1) [(A)] the set-aside amount is used for proposed projects that are located
throughout the state; and
(2) [(B)] not more than 50 percent of the set-aside amount is used for
proposed projects that are located in qualified census tracts as defined by Section
143(j), Internal Revenue Code of 1986.
The amendments were read.
Senator Averitt moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1664 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Averitt, Chair; Lindsay, Bivins, Williams, and VanideiPutte.
CONFERENCE COMMITTEE ON HOUSE BILL 1538
Senator Shapleigh called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1538 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer, Senator Armbrister in Chair, asked if there were any motions to instruct the conference committee on HBi1538 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Shapleigh, Chair; Wentworth, Nelson, Whitmire, and Ratliff.
CONFERENCE COMMITTEE ON HOUSE BILL 2593
Senator Estes called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi2593 and moved that the request be granted.
The motion prevailed without objection.
Friday, May 30, 2003 SENATE JOURNAL 4053
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi2593 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Estes, Chair; Madla, Lindsay, VanideiPutte, and Fraser.
CONFERENCE COMMITTEE ON HOUSE JOINT RESOLUTION 85
Senator Estes called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HJRi85 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HJRi85 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Estes, Chair; Madla, Lindsay, VanideiPutte, and Fraser.
CONFERENCE COMMITTEE ON HOUSE BILL 3546
Senator Lucio called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi3546 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi3546 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Lucio, Chair; Madla, Brimer, Staples, and Ogden.
SENATE BILL 76 WITH HOUSE AMENDMENTS
Senator Zaffirini called SBi76 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 76 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the provision of subsidized child-care services.
4054 78th Legislature — Regular Session 82nd Day
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubchapter E, Chapter 29, Education Code, is amended by adding Section 29.1533 to read as follows:
Sec.i29.1533.iiESTABLISHMENT OF NEW PREKINDERGARTEN PROGRAM. Before establishing a new prekindergarten program, a school district shall investigate the possibility of sharing use of an existing Head Start or other child-care program site as a prekindergarten site.
SECTIONi2.iiSection 29.155, Education Code, is amended by adding Subsections (g) through (j) to read as follows:
(g)iiFrom amounts appropriated for the purposes of this subsection, the commissioner may also provide for:
(1)iicoordinating early childhood care and education programs;
(2)iideveloping and disseminating for programs described by Subdivision (1) prekindergarten instructional materials and school-readiness information for parents; and
(3)iideveloping standards for model early childhood care and education coordination.
(h)iiThe model program standards developed under Subsection (g) must focus on pre-literacy skills, including language acquisition, vocabulary development, and phonological awareness.
(i)iiIn carrying out the purposes of Subsection (g), a school district or open-enrollment charter school may use funds granted to the district or school under this subsection in contracting with another entity, including a private entity.
(j)iiIf a school district or open-enrollment charter school returns to the commissioner funds granted under this section, the commissioner may grant those funds to another entity, including a private entity, for the purposes of Subsection (g).
SECTIONi3.iiSubchapter E, Chapter 29, Education Code, is amended by adding Section 29.1561 to read as follows:
Sec.i29.1561.iiADMINISTRATION OF EARLY CHILDHOOD CARE AND EDUCATION PROGRAMS. (a) The commissioner may waive a law or rule relating to early childhood care and education programs:
(1)iito the extent that the law or rule is more restrictive than required by federal law; or
(2)iito the extent necessary to comply with federal law.
(b)iiNotwithstanding any restriction imposed by this title, the commissioner may administer grants for early childhood care and education programs under Section 29.155 or 29.156, including Head Start and Early Head Start programs, in a manner that provides the greatest flexibility allowed under federal law.
SECTIONi4.iiSubchapter E, Chapter 29, Education Code, is amended by adding Sections 29.158, 29.159, and 29.160 to read as follows:
Sec.i29.158.iiCOORDINATION OF SERVICES. (a) In a manner consistent with federal law and regulations, each prekindergarten program provider, Head Start and Early Head Start program provider, and provider of an after-school child-care program provided at a school shall coordinate with the agency, the Texas Workforce Commission, and local workforce development boards regarding subsidized child-care services.
(b)iiThe coordination required by this section must include:
Friday, May 30, 2003 SENATE JOURNAL 4055
(1)iiproviding to an applicant for a child-care service information regarding:
(A)iichild-care resource and referral agencies serving the applicant's community;
(B)iiinformation and referral providers serving the applicant's community; or
(C)iithe prekindergarten program, local child-care and development fund contractor, or Head Start program administrator serving the applicant's community; and
(2)iicoordinating to ensure, to the extent practicable, that full-day, full-year child-care services are available to meet the needs of low-income parents who are working or participating in workforce training or workforce education.
(c)iiThe coordination required by this section may also include:
(1)iicooperating with each state agency regarding child-care or child-development studies conducted by that agency;
(2)iicollecting data necessary to determine a child's eligibility for subsidized child-care services or a prekindergarten, Head Start or Early Head Start, or after-school child-care program, to the extent that the collection of data does not violate the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g);
(3)iicooperating to provide for staff training and professional development activities;
(4)iiidentifying and developing methods for the collaborative provision of subsidized child-care services and prekindergarten, Head Start or Early Head Start, or after-school child-care program services, including:
(A)iioperating a combined system for eligibility determination or registration processes so that an applicant may apply for all services available in an applicant's community through a single point of access;
(B)iisharing facilities or staff; and
(C)iiincreasing the enrollment capacity of those programs;
(5)iiidentifying child-care facilities located in close proximity to prekindergarten, Head Start or Early Head Start, or after-school child-care programs;
(6)iicoordinating transportation between child-care facilities identified under Subdivision (5) and a prekindergarten, Head Start or Early Head Start, or after-school child-care program; and
(7)iicoordinating with the State Center for Early Childhood Development to develop longitudinal studies to measure the effects of quality early childhood care and education programs on educational achievement, including high school performance and completion.
(d)iiIn coordinating child-care services under this section and in making any related decision to contract with another provider for child-care services, the agency, Texas Workforce Commission, local workforce development boards, and each prekindergarten program provider, Head Start and Early Head Start program provider, and provider of an after-school child-care program provided at a school shall consider the quality of the services involved in the proposed coordination or contracting decision. Any appropriate indicator of quality services may be considered under this subsection, including whether the provider of the services:
4056 78th Legislature — Regular Session 82nd Day
(1)iimeets the Texas Rising Star Provider criteria described by 40 T.A.C. Section 809.15(b);
(2)iiis accredited by a nationally recognized accrediting organization approved by the Texas Workforce Commission and the Department of Protective and Regulatory Services;
(3)iimeets standards developed by the State Center for Early Childhood Development; or
(4)iihas achieved any other measurable target relevant to improving the quality of child care in this state.
(e)iiAny coordination required by this section that involves a prekindergarten program must beiapproved by the commissioner.
Sec.i29.159.iiPROVISION OF CERTAIN INFORMATION. (a) Except as otherwise provided by this section, each provider of government-funded child-care services shall, at the time that a child is enrolled with the provider, furnish to the child's parent information regarding:
(1)iieffective early education settings; and
(2)iiany indicators that a child is ready for kindergarten that have been developed at the time the child is enrolled.
(b)iiIf a provider does not have sufficient resources to provide the information specified by Subsection (a), the provider shall:
(1)iifurnish the parent with the appropriate telephone numbers or Internet sites through which the parent may obtain the information; or
(2)iirefer the parent to a local child-care resource and referral agency.
Sec.i29.160.iiDEMONSTRATION PROJECTS. (a) The State Center for Early Childhood Development, in conjunction with a school district, regional education service center, institution of higher education, local government, local workforce development board, or community organization, may develop a quality rating system demonstration project under which prekindergarten program providers, licensed child-care facilities, or Head Start and Early Head Start program providers are assessed under a quality rating system.
(b)iiIn developing the quality rating system demonstration project, the State Center for Early Childhood Development is entitled to:
(1)iireasonable access to the sites at which the programs to be rated are operated, which may include sites under the authority of school districts or the Department of Protective and Regulatory Services; and
(2)iitechnical assistance and support from the agency, the Texas Workforce Commission, and the Department of Protective and Regulatory Services to the extent that those agencies have the ability to provide assistance and support using existing agency resources.
(c)iiA school district, regional education service center, institution of higher education, local government, local workforce development board, or community organization may develop one or more coordination-of-resources demonstration projects under which government-funded child-care services are operated in a coordinated manner. An entity that develops a proposed demonstration project under this subsection must obtain approval of the project from the state agency or agencies with regulatory jurisdiction over the subject matter involved in the project.
Friday, May 30, 2003 SENATE JOURNAL 4057
(d)iiAn entity that obtains approval of a coordination-of-resources demonstration project is entitled to a waiver or modification of any existing rule, policy, or procedure of the agency, the Texas Workforce Commission, or the Department of Protective and Regulatory Services that impairs the coordinated provision of government-funded child-care services, provided that the waiver or modification does not adversely affect the health, safety, or welfare of the children receiving services under the project. In addition, if applicable, the appropriate state agency must seek on behalf of the entity any available federal waiver from a federal rule, policy, or procedure imposed in connection with a Head Start program that impairs the coordinated provision of government-funded child-care services.
(e)iiThe State Center for Early Childhood Development and any other entity that implements a demonstration project under this section must provide a report to the legislature and to the state agency or agencies with regulatory jurisdiction over the subject matter involved in the project. The report must include:
(1)iian evaluation of the effectiveness of the project; and
(2)iirecommendations on statewide implementation of the project.
(f)iiThe report required by Subsection (e) must be provided at the time specified jointly by the state agency or agencies with regulatory jurisdiction over the subject matter involved in the demonstration project.
SECTIONi5. (a) The director of the State Center for Early Childhood Development shall establish an advisory committee on child-care coordination to evaluate the feasibility of coordinating government-funded child-care programs in a manner that promotes access to child-care programs and results in improved school readiness. The advisory committee must include representatives of:
(1)iithe Office of Early Childhood Coordination established under Subchapter H, Chapter 531, Government Code;
(2)iithe Texas Workforce Commission;
(3)iithe Texas Education Agency;
(4)iithe Department of Protective and Regulatory Services;
(5)iiindependent school districts;
(6)iilocal workforce development boards;
(7)iichild-care development fund contractors;
(8)iiHead Start program providers;
(9)iithe Head Start Association;
(10)iithe Head Start Collaboration Office;
(11)iinonprofit child-care providers;
(12)iifor-profit child-care providers;
(13)iiadministrators of government-funded child-care programs;
(14)iiparents of children receiving government-funded child-care services or other consumers of government-funded child-care services; and
(15)iiany other appropriate group, as determined by the director of the State Center for Early Childhood Development.
(b)iiThe advisory committee is not subject to Chapter 2110, Government Code.
(c)iiA member of the advisory committee may not receive compensation for serving on the committee.
4058 78th Legislature — Regular Session 82nd Day
(d)iiThe director of the State Center for Early Childhood Development shall designate a member of the advisory committee to serve as presiding officer of the committee.
(e)iiThe advisory committee shall meet at the call of the presiding officer of the committee.
(f)iiA member of the advisory committee serves at the will of the director of the State Center for Early Childhood Development.
(g)iiThe advisory committee may coordinate its activities with the activities of the Office of Early Childhood Coordination advisory committee established under Section 531.286, Government Code.
(h)iiNot later than Septemberi1, 2004, the advisory committee shall prepare and deliver a report to the governor, lieutenant governor, speaker of the house of representatives, and clerks of the standing committees of the senate and house of representatives with primary jurisdiction over state-subsidized child-care services. The report must identify the types of data collected and maintained by government-funded child-care providers, including Head Start program providers and providers under contract with local workforce development boards. The report must also include recommendations for:
(1)iieffective models of child-care coordination;
(2)iieffective administrative structure at the state and local level to facilitate coordination of child-care resources;
(3)iirevision of statutes and policies to facilitate child-care coordination;
(4)iione or more methods of including the collected and maintained data identified in this subsection in the public school information maintained by the agency through the Public Education Information Management System (PEIMS); and
(5)iipromotion of school readiness through early child-care and education programs.
(i)iiOn Decemberi31, 2004, the advisory committee is abolished and this section expires.
SECTIONi6.iiThis Act takes effect Septemberi1, 2003.
Floor Amendment No. 1
Amend CSSB 76 in SECTION 4 of the bill, in proposed Section 29.158(d), Education Code (House committee report, page 5, line 9), between "decision" and the period, by inserting "and shall give preference to services of the highest quality".
Floor Amendment No. 3
Amend CSSB 76 as follows:
Page 8, line 16 amend section 5(a) to read as follows:
(a) The Commissioner of Education shall establish a 15 member advisory committee on child-care coordination to evaluate the feasibility of coordinating government-funded child-care programs in a manner that promotes access to child-care programs and results in improved school readiness. The advisory committee must include a representative of:
(1) the Office of Early Childhood Coordination established under Subchapter H, Chapter 531, Government Code;
(2) the Texas Workforce Commission;
Friday, May 30, 2003 SENATE JOURNAL 4059
(3) the Texas Education Agency;
(4) the Department of Protective and Regulatory Services;
(5) independent school districts;
(6) local workforce development boards;
(7) child-care development fund contractors;
(8) Head Start program providers;
(9) The Head Start Association;
(10) The Head Start Collaboration Office;
(11) Nonprofit child-care providers;
(12) For-profit child-care providers;
(13) Administrators of government-funded child-care programs;
(14) Parents of children receiving government-funded child-care programs;
(15) Texas Licensed Child Care Association
Floor Amendment No. 1 on Third Reading
Amend CSSB 76 on third reading as follows:
(1) In SECTION 4 of the bill, in the first sentence of added Subsection (d), Section 29.158, Education Code (page 5, lines 3 through 4), strike "Texas Workforce Commission,".
(2) In SECTION 4 of the bill, in the first sentence of added Subsection (d), Section 29.160, Education Code (page 7, line 18), strike "is entitled to" and substitute "may request, from the appropriate state agency,".
(3) In SECTION 4 of the bill, in the second sentence of added Subsection (d), Section 29.160, Education Code (page 7, line 26), strike "must" and substitute "may".
(4) In SECTION 4 of the bill, at the end of added Subsection (d), Section 29.160, Education Code (page 8, line 2), insert "A state agency receiving a request from an entity to seek an available federal waiver under this subsection shall, not later than the 30th day after the date on which the request is made, notify the entity whether the agency intends to seek the waiver. A request for a federal waiver under this subsection may only be rejected if the state agency has reason to believe that the operation of the federal waiver would result in the state agency's failure to comply with federal law or regulations or could result in penalties to the state.".
The amendments were read.
Senator Zaffirini moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 76 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Zaffirini, Chair; Shapiro, Carona, VanideiPutte, and Shapleigh.
4060 78th Legislature — Regular Session 82nd Day
CONFERENCE COMMITTEE ON HOUSE BILL 1163
Senator Harris called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1163 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1163 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Harris, Chair; Armbrister, Ratliff, Madla, and Nelson.
CONFERENCE COMMITTEE ON HOUSE BILL 1493
Senator Harris called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1493 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1493 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Harris, Chair; Jackson, Averitt, Staples, and Lucio.
CONFERENCE COMMITTEE ON HOUSE BILL 1695
Senator Nelson called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1695 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1695 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Nelson, Chair; Ellis, Armbrister, Shapiro, and Staples.
SENATE BILL 671 WITH HOUSE AMENDMENTS
Senator Staples called SBi671 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer, Senator Armbrister in Chair, laid the bill and the House amendments before the Senate.
Friday, May 30, 2003 SENATE JOURNAL 4061
Floor Amendment No. 1
Amend SB 671 by striking all below the enacting clause and substituting the following:
SECTIONi1.iiTitle 1, Tax Code, is amended by adding Subtitle G to read as follows:
SUBTITLE G. DETERMINATION OF SCHOOL DISTRICT PROPERTY
VALUES AND APPRAISAL DISTRICT ACCOUNTABILITY
CHAPTER 51. DETERMINATION OF SCHOOL DISTRICT PROPERTY
VALUES AND APPRAISAL DISTRICT ACCOUNTABILITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec.i51.01.iiPURPOSE. It is the policy of this state to ensure equity among taxpayers in the burden of school district taxes and among school districts in the distribution of state financial aid for public education. The purpose of this chapter is to promote that policy by providing for uniformity in local property appraisal practices and procedures and for determining property values for schools in order to distribute state funding equitably.
Sec.i51.02.iiDEFINITIONS. In this chapter:
(1)ii"Annual study" means a study conducted under Section 51.21.
(2)ii"Eligible school district" means a school district for which the commissioner has determined the following:
(A)iiin the most recent annual study, the local value is invalid under Section 51.21(c) and does not exceed the state value for the school district determined in the annual study;
(B)iiin the annual study for each of the two years preceding the most recent annual study, the school district's local value was valid; and
(C)iiin the most recent annual study, the aggregate local value of all of the categories of property sampled by the commissioner is not less than 95 percent of the lower limit of the margin of error as determined by the commissioner of the aggregate value as determined by the commissioner of all of the categories of property sampled by the commissioner.
(3)ii"Local value" means the market value of property in a school district as determined by the appraisal district that appraises property for the school district, less the total amounts and values listed in Section 51.21(d) as determined by that appraisal district.
(4)ii"Ratio study" means a study conducted under Section 51.41.
(5)ii"State value" means the value of property in a school district as determined in the annual study as provided by Section 51.21(c).
[Sections 51.03-51.20 reserved for expansion]
SUBCHAPTER B. DETERMINATION OF SCHOOL DISTRICT
PROPERTY VALUES
Sec.i51.21.iiDETERMINATION OF SCHOOL DISTRICT PROPERTY VALUES. (a) The commissioner shall conduct an annual study to determine the total taxable value of all property in each school district. The annual study shall determine the total taxable value of all property and of each category of property in each school district. The annual study shall also determine the productivity value of all land
4062 78th Legislature — Regular Session 82nd Day
(b)iiIn conducting the annual study, the commissioner shall determine the taxable value of property in each school district:
(1)iiusing, if appropriate, samples selected through generally accepted sampling techniques;
(2)iiaccording to generally accepted standard valuation, statistical compilation, and analysis techniques;
(3)iiensuring that different levels of appraisal on sold and unsold property do not adversely affect the accuracy of the study; and
(4)iiusing current technology and techniques in appraising commercial personal property.
(c)iiIf after conducting the annual study the commissioner determines that the local value for a school district is valid, the local value is presumed to represent taxable value for the school district. In the absence of that presumption, taxable value for a school district is the state value for the school district determined in the annual study under Subsections (a) and (b), unless the local value exceeds the state value, in which case the taxable value for the school district is the district's local value.
(d)iiFor purposes of this section, "taxable value" means the market value of all taxable property less:
(1)iithe total dollar amount of any residence homestead exemptions lawfully granted under Section 11.13(b) or (c) in the year that is the subject of the study for each school district;
(2)iione-half of the total dollar amount of any residence homestead exemptions granted under Section 11.13(n) in the year that is the subject of the study for each school district;
(3)iithe total dollar amount of any exemptions granted before May 31, 1993, within a reinvestment zone under agreements authorized by Chapter 312;
(4)iisubject to Subsection (e), the total dollar amount of any captured appraised value of property that:
(A)iiis within a reinvestment zone created on or before May 31, 1999, or is proposed to be included within the boundaries of a reinvestment zone as the boundaries of the zone and the proposed portion of tax increment paid into the tax increment fund by a school district are described in a written notification provided by the municipality or the board of directors of the zone to the governing bodies of the other taxing units in the manner provided by Section 311.003(e) before May 31, 1999, and within the boundaries of the zone as those boundaries existed on September 1, 1999, including subsequent improvements to the property regardless of when made;
(B)iigenerates taxes paid into a tax increment fund created under Chapter 311 under a reinvestment zone financing plan approved under Section 311.011(d) on or before September 1, 1999; and
(C)iiis eligible for tax increment financing under Chapter 311;
(5)iithe total dollar amount of any exemptions granted under Section 11.251;
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(6)iithe difference between the commissioner's determination of the market value and the productivity value of land that qualifies for appraisal on the basis of its productive capacity under Chapter 23;
(7)iithe portion of the appraised value of residence homesteads of the elderly on which school district taxes are not imposed in the year that is the subject of the study, calculated as if the residence homesteads were appraised at the full value required by law;
(8)iia portion of the market value of property not otherwise fully taxable by the district at market value because of:
(A)iiaction required by statute or the constitution of this state that, if the tax rate adopted by the district is applied to it, produces an amount equal to the difference between the tax that the district would have imposed on the property if the property were fully taxable at market value and the tax that the district is actually authorized to impose on the property, if this subsection does not otherwise require that portion to be deducted; or
(B)iiaction taken by the district under Subchapter B or C, Chapter 313;
(9)iithe market value of all tangible personal property, other than manufactured homes, owned by a family or individual and not held or used for the production of income;
(10)iithe appraised value of property for which the collection of delinquent taxes is deferred under Section 33.06;
(11)iithe portion of the appraised value of property for which the collection of delinquent taxes is deferred under Section 33.065; and
(12)iithe amount by which the market value of a residence homestead to which Section 23.23 applies exceeds the appraised value of that property as calculated under that section.
(e)iiThe total dollar amount deducted in each year as required by Subsection (d)(3) in a reinvestment zone created after January 1, 1999, may not exceed the captured appraised value estimated for that year as required by Section 311.011(c)(8) in the reinvestment zone financing plan approved under Section 311.011(d) before September 1, 1999. The number of years for which the total dollar amount may be deducted under Subsection (d)(3) shall for any zone, including those created on or before January 1, 1999, be limited to the duration of the zone as specified as required by Section 311.011(c)(9) in the reinvestment zone financing plan approved under Section 311.011(d) before September 1, 1999. The total dollar amount deducted under Subsection (d)(3) for any zone, including a zone created on or before January 1, 1999, may not be increased by any reinvestment zone financing plan amendments that occur after August 31, 1999. The total dollar amount deducted under Subsection (d)(3) for any zone, including a zone created on or before January 1, 1999, may not be increased by a change made after August 31, 1999, in the portion of the tax increment retained by the school district.
(f)iiThe annual study shall determine the school district values as of January 1 of each study year.
(g)iiIf after conducting the annual study for the year 2003 or a subsequent year the commissioner determines that a school district is an eligible school district, for that year and the following year the taxable value for the school district is the district's
4064 78th Legislature — Regular Session 82nd Day
(h)iiIf the commissioner determines in the annual study conducted for the year 2002 or 2003 that the taxable value for a school district is the local value because the local value is invalid and exceeds the state value, the commissioner of education shall compute the amount by which the funding under Chapter 42, Education Code, of the school district is reduced for the 2003-2004 and 2004-2005 school years, respectively, because of the use of local value rather than state value as taxable value. For each of those school years, the commissioner of education shall allocate an amount equal to the amount of the reduction for that school year to the school districts that receive funding under Chapter 42, Education Code, whose taxable value for the applicable year is the state value, and whose maintenance and operations tax rate for the applicable year exceeds $1.42 on the $100 valuation of taxable property. The allocation shall be made in proportion to the amount of funding under Chapter 42, Education Code, that each of those school districts would otherwise have received in that year. This subsection expires September 30, 2005.
(i)iiThe commissioner shall publish preliminary findings, listing values by school district, before February 1 of the year following the study year. Preliminary findings shall be delivered to each school district and shall be certified to the commissioner of education.
(j)iiFor purposes of Section 42.2511, Education Code, the commissioner shall certify to the commissioner of education:
(1)iia final value for each school district computed on a residence homestead exemption under Section 1-b(c), Article VIII, Texas Constitution, of $5,000; and
(2)iia final value for each school district computed on:
(A)iia residence homestead exemption under Section 1-b(c), Article VIII, Texas Constitution, of $15,000; and
(B)iithe effect of the additional limitation on tax increases under Section 1-b(d), Article VIII, Texas Constitution.
(k)iiFor purposes of Section 42.2522, Education Code, the commissioner shall certify to the commissioner of education:
(1)iia final value for each school district computed without any deduction for residence homestead exemptions granted under Section 11.13(n); and
(2)iia final value for each school district computed after deducting one-half the total dollar amount of residence homestead exemptions granted under Section 11.13(n).
Sec.i51.22.iiADMINISTRATIVE AND JUDICIAL REVIEW. (a) A school district, or a property owner whose property is included in the annual study and whose tax liability on the property is $100,000 or more, may protest the commissioner's findings by filing a petition with the commissioner. The petition must be filed not later than the 40th day after the date on which the commissioner's findings are certified to the commissioner of education and must include specific pleadings stating the legal and appraisal issues in dispute and the value claimed to be correct.
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(b)iiOn receipt of a petition, the commissioner shall hold a hearing. The commissioner has the burden to prove the accuracy of the findings. Until a final decision is made by the commissioner, the taxable value of property in the district is determined, with respect to the property subject to the protest, according to the value of the property claimed by the school district or property owner, except that the value to be used while a final decision is pending may not be less than the value of the property as listed on the school district's appraisal roll for the year of the study. If after the hearing the commissioner concludes that the findings should be changed, the commissioner shall order the appropriate changes and shall certify the changes to the commissioner of education. The commissioner shall complete all protest hearings and certify all changes as necessary to comply with Chapter 42, Education Code. A hearing conducted under this subsection is not a contested case for purposes of Section 2001.003, Government Code.
(c)iiThe commissioner shall adopt procedural rules governing the conduct of protest hearings. The rules shall provide for each protesting school district and property owner to:
(1)iibe informed of the requirements for submitting a petition initiating a protest;
(2)iireceive adequate notice of a hearing;
(3)iihave an opportunity to present evidence and oral argument; and
(4)iibe given notice by the commissioner of the commissioner's decision on the hearing.
(d)iiA protesting school district may appeal a determination of protest by the commissioner to a district court in Travis County by filing a petition with the court. An appeal must be filed not later than the 30th day after the date the school district receives notice from the commissioner of the determination. Review is conducted by the court sitting without a jury. The court shall remand the determination to the commissioner if on review the court discovers that substantial rights of the school district have been prejudiced and that:
(1)iithe commissioner has acted arbitrarily and without regard to the facts; or
(2)iithe determination of the commissioner is not reasonably supported by substantial evidence introduced before the court.
Sec.i51.23.iiAUDIT. (a) On request of a school district or the commissioner of education, the commissioner may audit the total taxable value of property in a school district and may revise the annual study findings. The request for audit is limited to corrections and changes in a school district's appraisal roll that occurred after preliminary certification of the annual study findings by the commissioner.
(b)iiExcept as provided by Subsection (c), the request for audit must be filed with the commissioner not later than the third anniversary of the date of the final certification of the annual study findings.
(c)iiThe request for audit may be filed not later than the first anniversary of the date the chief appraiser certifies a change to the appraisal roll if:
(1)iithe chief appraiser corrects the appraisal roll under Section 25.25 or 42.41; and
(2)iithe change results in a material reduction in the total taxable value of property in the school district.
4066 78th Legislature — Regular Session 82nd Day
(d)iiThe commissioner shall certify the findings of the audit to the commissioner of education.
Sec.i51.24.iiCONFIDENTIALITY. (a) All information the commissioner obtains from a person, other than a governmental entity, under an assurance that the information will be kept confidential, in the course of conducting the annual study is confidential and may not be disclosed, except as provided by Subsection (b).
(b)iiInformation made confidential by this section may be disclosed:
(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who gave the information to the commissioner; or
(3)iifor statistical purposes if in a form that does not identify specific property or a specific owner.
[Sections 51.25-51.40 reserved for expansion]
SUBCHAPTER C. DETERMINATION OF APPRAISAL DISTRICT
ACCOUNTABILITY
Sec.i51.41.iiAPPRAISAL DISTRICT RATIO STUDY. (a) The commissioner shall conduct a study in each appraisal district for each tax year to determine the degree of uniformity of and the median level of appraisals by the appraisal district within each major category of property for that tax year. In conducting the study, the commissioner shall apply appropriate standard statistical analysis techniques to data collected as part of the annual study of school district property values required by Section 51.21.
(b)iiThe commissioner shall publish a report of the findings of the study, including the median level of appraisal for each major category of property, the coefficient of dispersion around the median level of appraisal for each major category of property, and any other standard statistical measure that the commissioner considers appropriate. A copy of the published report of the commissioner shall be distributed to each member of the legislature and to each appraisal district.
(c)iiIn conducting a study under this section, the commissioner or the commissioner's authorized representatives may enter the premises of a business, trade, or profession and inspect the property to determine the existence and market value of property used for the production of income. An inspection under this subsection must be made during normal business hours or at a time mutually agreeable to the commissioner or the commissioner's authorized representatives and the person in control of the premises.
Sec.i51.42.iiAPPRAISAL STANDARDS REVIEW. (a) The commissioner shall review the appraisal standards, procedures, and methodology used by each appraisal district that appraises property for an eligible school district to determine compliance with generally accepted appraisal standards and practices. The commissioner by rule may establish procedures and standards for conducting the review.
(b)iiIn conducting the review, the commissioner is entitled to access to all records and reports of the appraisal district and to the assistance of the appraisal district's officers and employees.
(c)iiIf the review results in a finding that an appraisal district is not in compliance with generally accepted appraisal standards and practices, the commissioner shall deliver a report that details the commissioner's findings and recommendations for improvement to:
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(1)iithe appraisal district's chief appraiser and board of directors; and
(2)iithe superintendent and board of trustees of each school district participating in the appraisal district.
(d)iiIf the appraisal district fails to comply with the recommendations in the report and the commissioner finds that the board of directors of the appraisal district failed to take remedial action before the first anniversary of the date the report was issued, the commissioner shall notify the judge of each district court in the county for which the appraisal district is established, who shall appoint a board of conservators consisting of five members to implement the recommendations. The board of conservators shall exercise supervision and control over the operations of the appraisal district until the commissioner determines under Section 51.21 that in the same year the taxable value of each school district for which the appraisal district appraises property is the local value for the district. The appraisal district shall bear the costs related to the supervision and control of the district by the board of conservators.
Sec.i51.43.iiAPPRAISAL DISTRICT PERFORMANCE AUDITS. (a) The commissioner shall audit the performance of an appraisal district if one or more of the following conditions exist according to each of two consecutive ratio studies conducted under Section 51.41, regardless of whether the prescribed condition or conditions that exist are the same for each of those studies:
(1)iithe overall median level of appraisal for all property in the district for which the commissioner determines a median level of appraisal is less than 0.75;
(2)iithe coefficient of dispersion around the overall median level of appraisal of the properties used to determine the overall median level of appraisal for all property in the district for which the commissioner determines a median level of appraisal is more than 0.30; or
(3)iithe difference between the median levels of appraisal for any two classes of property in the district for which the commissioner determines a median level of appraisal is more than 0.45.
(b)iiAt the written request of the governing bodies of a majority of the taxing units participating in an appraisal district or of a majority of the taxing units entitled to vote on the appointment of appraisal district directors, the commissioner shall audit the performance of the appraisal district. The governing bodies may request a general audit of the performance of the appraisal district or may request an audit of only one or more specific duties, practices, functions, departments, or other appraisal district matters.
(c)iiAt the written request of the owners of not less than 10 percent of the number of accounts or parcels of property in an appraisal district belonging to a single class of property, if the class constitutes at least five percent of the appraised value of taxable property within the district in the preceding year, or at the written request of the owners of property representing not less than 10 percent of the appraised value of all property in the district belonging to a single class of property, if the class constitutes at least five percent of the appraised value of taxable property in the district in the preceding year, the commissioner shall audit the performance of the appraisal district. The property owners may request a general audit of the performance of the appraisal district or may request an audit of only one or more specific duties, practices,
4068 78th Legislature — Regular Session 82nd Day
(d)iiA request for a performance audit of an appraisal district may not be made under Subsection (b) or (c) if according to each of the two most recently published ratio studies conducted by the commissioner under Section 51.41:
(1)iithe overall median level of appraisal for all property in the district for which the commissioner determines a median level of appraisal is more than 0.90 and less than 1.10;
(2)iithe coefficient of dispersion around the overall median level of appraisal of the properties used to determine the overall median level of appraisal for all property in the district for which the commissioner determines a median level of appraisal is less than 0.15; and
(3)iithe difference between the highest and lowest median levels of appraisal in the district for the classes of property for which the commissioner determines a median level of appraisal is less than 0.20.
(e)iiA request for a performance audit of an appraisal district may not be made under Subsection (b) or (c):
(1)iiduring the two years following the publication of the second of two consecutive ratio studies according to which the commissioner is required to conduct an audit of the district under Subsection (a); or
(2)iiduring the year immediately following the date the results of an audit of the district conducted by the commissioner under Subsection (a) are reported to the chief appraiser of the district.
(f)iiFor purposes of this section, "class of property" means a major kind of property for which the commissioner determines a median level of appraisal under Section 51.41.
(g)iiIn addition to the performance audits permitted by Subsections (a), (b), and (c) and the appraisal standards review required by Section 51.42, the commissioner may audit an appraisal district to analyze the effectiveness and efficiency of the policies, management, and operations of the appraisal district. The results of the audit shall be delivered in a report that details the commissioner's findings and recommendations for improvement to the appraisal district's chief appraiser and board of directors and to the governing body of each taxing unit participating in the appraisal district. The commissioner may require reimbursement by the appraisal district for some or all of the costs of the audit, not to exceed the actual costs associated with conducting the audit.
Sec.i51.44.iiADMINISTRATION OF PERFORMANCE AUDITS. (a) The commissioner shall complete an audit required by Section 51.43(a) not later than the second anniversary of the date of the publication of the second of the two ratio studies the results of which required the audit to be conducted. The commissioner shall complete an audit requested under Section 51.43(b) or (c) as soon as practicable after
Friday, May 30, 2003 SENATE JOURNAL 4069
(b)iiThe commissioner may not audit the financial condition of an appraisal district or a district's tax collections. If the request is for an audit limited to one or more particular matters, the commissioner's audit must be limited to those matters.
(c)iiThe commissioner must approve the specific plan for the performance audit of an appraisal district. Before approving an audit plan, the commissioner must provide any interested person an opportunity to appear before the commissioner and to comment on the proposed plan. Not later than the 20th day before the date the commissioner considers the plan for an appraisal district performance audit, the commissioner must notify the presiding officer of the appraisal district's board of directors that the commissioner intends to consider the plan. The notice must include the time, date, and location of the meeting to consider the plan. Immediately after receiving the notice, the presiding officer shall deliver a copy of the notice to the other members of the appraisal district's board of directors.
(d)iiIn conducting a general audit, the commissioner shall consider and report on:
(1)iithe extent to which the district complies with applicable law and generally accepted standards of appraisal or other relevant practice;
(2)iithe uniformity and level of appraisal of major kinds of property and the cause of any significant deviation from ideal uniformity and equality of appraisal of major kinds of property;
(3)iiduplication of effort and efficiency of operation;
(4)iithe general efficiency, quality of service, and qualification of appraisal district personnel; and
(5)iiexcept as otherwise provided by Subsection (b), any other matter included in the request for the audit.
(e)iiIn conducting the audit, the commissioner is entitled to have access at all times to the books, appraisal and other records, reports, vouchers, and other information, confidential or not, of the appraisal district. The commissioner may require the assistance of appraisal district officers and employees that does not interfere significantly with the ordinary functions of the appraisal district. The commissioner may rely on any previous analysis the commissioner has made relating to the appraisal district if the previous analysis is useful or relevant to the audit.
(f)iiThe commissioner shall report the results of the audit in writing to the governing body of each taxing unit that participates in the appraisal district, to the chief appraiser, and to the presiding officer of the appraisal district's board of directors. If the audit was requested under Section 51.43(c), the commissioner shall also provide a report to a representative of the property owners who requested the audit.
(g)iiIf the audit is required or requested under Section 51.43(a) or (b), the appraisal district shall reimburse the commissioner for the costs incurred in conducting the audit and making the commissioner's report of the audit. The costs shall be allocated among the taxing units participating in the district in the same manner as an operating expense of the district. If the audit is requested under Section 51.43(c), the property owners who requested the audit shall reimburse the
4070 78th Legislature — Regular Session 82nd Day
(h)iiAt any time after the request for an audit is made, the commissioner may discontinue the audit in whole or in part if requested to do so by:
(1)iithe governing bodies of a majority of the taxing units participating in the district, if the audit was requested by a majority of those units;
(2)iithe governing bodies of a majority of the taxing units entitled to vote on the appointment of appraisal district directors, if the audit was requested by a majority of those units; or
(3)iiif the audit was requested under Section 51.43(c), by the property owners who requested the audit.
(i)iiThe commissioner by rule may adopt procedures, audit standards, and forms for the administration of performance audits.
Sec.i51.45.iiADMINISTRATIVE PROVISIONS. (a) The commissioner may inspect the records or other materials of an appraisal district or taxing unit, including relevant records and materials in the possession or control of a consultant, advisor, or expert hired by the appraisal district or taxing unit, for the purpose of conducting an annual study, ratio study, appraisal standards review, or performance audit required or authorized by this chapter.
(b)iiOn request of the commissioner, the appraisal district or administrative officer of the taxing unit shall produce the records or other materials in the form and manner prescribed by the commissioner.
(c)iiThe commissioner shall prescribe a uniform record system to be used by all appraisal districts for the purpose of submitting data to be used in the annual study and ratio study. The record system shall include a compilation of information concerning sales of real property within the boundaries of the appraisal district. The sales information maintained in the uniform record system shall be submitted annually in a form prescribed by the commissioner.
SECTIONi2.iiSection 13.051(c), Education Code, is amended to read as follows:
(c)iiTerritory that does not have residents may be detached from a school district and annexed to another school district if:
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(1)iithe total taxable value of the property in the territory according to the most recent certified appraisal roll for each school district is not greater than:
(A)iifive percent of the district's taxable value of all property in that
district as determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code; and
(B)ii$5,000 property value per student in average daily attendance as determined under Section 42.005; and
(2)iithe school district from which the property will be detached does not own any real property located in the territory.
SECTIONi3.iiSection 13.231(b), Education Code, is amended to read as follows:
(b)iiIn this section, "taxable value" has the meaning assigned by Section 51.21,
Tax [403.302, Government] Code.
SECTIONi4.iiSection 41.001(2), Education Code, is amended to read as follows:
(2)ii"Wealth per student" means the taxable value of property, as determined
under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403, Government]
Code, divided by the number of students in weighted average daily attendance.
SECTIONi5.iiSection 41.002(f), Education Code, is amended to read as follows:
(f)iiFor purposes of Subsection (e), a school district's effective tax rate is
determined by dividing the total amount of taxes collected by the district for the
applicable school year less any amounts paid into a tax increment fund under Chapter
311, Tax Code, by the quotient of the district's taxable value of property, as
determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403,
Government] Code, divided by 100.
SECTIONi6.iiSection 41.005, Education Code, is amended to read as follows:
Sec.i41.005.ii[COMPTROLLER AND APPRAISAL DISTRICT]
COOPERATION. The chief appraiser of each appraisal district and the commissioner
of the State Board on Property Valuation [comptroller] shall cooperate with the
commissioner and school districts in implementing this chapter.
SECTIONi7.iiSection 41.202(a), Education Code, is amended to read as follows:
(a)iiFor purposes of this subchapter, the taxable value of an individual parcel or
other item of property and the total taxable value of property in a school district
resulting from the detachment of property from or annexation of property to that
district is determined by applying the appraisal ratio for the appropriate category of
property determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code, for the preceding tax year to the taxable value of the
detached or annexed property determined under Title 1, Tax Code, for the preceding
tax year.
SECTIONi8.iiSections 42.106 and 42.2511, Education Code, are amended to read as follows:
Sec.i42.106.iiADJUSTED PROPERTY VALUE FOR DISTRICTS NOT OFFERING ALL GRADE LEVELS. For purposes of this chapter, the taxable value of property of a school district that contracts for students residing in the district to be educated in another district under Section 25.039(a) is adjusted by applying the formula:
4072 78th Legislature — Regular Session 82nd Day
ADPV = DPV - (TN/.015)
where:
"ADPV" is the district's adjusted taxable value of property;
"DPV" is the taxable value of property in the district for the preceding tax year
determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403,
Government] Code; and
"TN" is the total amount of tuition required to be paid by the district under Section 25.039 for the school year for which the adjustment is made.
Sec.i42.2511.iiADDITIONAL STATE AID FOR HOMESTEAD EXEMPTION.
(a) Notwithstanding any other provision of this chapter, a school district is entitled to
additional state aid to the extent that state aid under this chapter based on the
determination of the school district's taxable value of property as provided under
Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, does
not fully compensate the district for ad valorem tax revenue lost due to the increase in
the homestead exemption under Section 1-b(c), Article VIII, Texas Constitution, as
proposed by H.J.R. No. 4, 75th Legislature, Regular Session, 1997, and the additional
limitation on tax increases under Section 1-b(d), Article VIII, Texas Constitution, as
proposed by H.J.R. No. 4, 75th Legislature, Regular Session, 1997.
(b)iiThe commissioner, using information provided by the commissioner of the
State Board on Property Valuation [comptroller], shall compute the amount of
additional state aid to which a district is entitled under this section. A determination
by the commissioner under this section is final and may not be appealed.
SECTIONi9.iiSections 42.252(a) and (c), Education Code, are amended to read as follows:
(a)iiEach school district's share of the Foundation School Program is determined by the following formula:
LFA = TR X DPV
where:
"LFA" is the school district's local share;
"TR" is a tax rate which for each hundred dollars of valuation is an effective tax rate of $0.86; and
"DPV" is the taxable value of property in the school district for the preceding tax
year determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403,
Government] Code.
(c)iiAppeals of district values shall be held pursuant to Section 51.22, Tax
[403.303, Government] Code.
SECTIONi10.iiSections 42.2522(a) and (d), Education Code, are amended to read as follows:
(a)iiIn any school year, the commissioner may not provide funding under this
chapter based on a school district's taxable value of property computed in accordance
with Section 51.21(d)(2), Tax [403.302(d)(2), Government] Code, unless:
(1)iifunds are specifically appropriated for purposes of this section; or
(2)iithe commissioner determines that the total amount of state funds appropriated for purposes of the Foundation School Program for the school year exceeds the amount of state funds distributed to school districts in accordance with Section 42.253 based on the taxable values of property in school districts computed in
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accordance with Section 51.21(d), Tax [403.302(d), Government] Code, without any
deduction for residence homestead exemptions granted under Section 11.13(n), Tax
Code.
(d)iiIf the commissioner determines that the amount of funds available under
Subsection (a)(1) or (2) does not at least equal the total amount of state funding to
which districts would be entitled if state funding under this chapter were based on the
taxable values of property in school districts computed in accordance with Section
51.21(d)(2), Tax [403.302(d)(2), Government] Code, the commissioner may, to the
extent necessary, provide state funding based on a uniform lesser fraction of the
deduction under Section 51.21(d)(2), Tax [403.302(d)(2), Government] Code.
SECTIONi11.iiSection 42.253(h), Education Code, is amended to read as follows:
(h)iiIf the legislature fails during the regular session to enact the transfer and
appropriation proposed under Subsection (f) and there are not funds available under
Subsection (j), the commissioner shall reduce the total amount of state funds allocated
to each district by an amount determined by a method under which the application of
the same number of cents of increase in tax rate in all districts applied to the taxable
value of property of each district, as determined under Subchapter B, Chapter 51, Tax
[Subchapter M, Chapter 403, Government] Code, results in a total levy equal to the
total reduction. The following fiscal year, a district's entitlement under this section is
increased by an amount equal to the reduction made under this subsection.
SECTIONi12.iiSection 42.254, Education Code, is amended to read as follows:
Sec.i42.254.iiESTIMATES REQUIRED. (a) Not later than October 1 of each even-numbered year:
(1)iithe agency shall submit to the legislature an estimate of the tax rate and student enrollment of each school district for the following biennium; and
(2)iithe commissioner of the State Board on Property Valuation [comptroller]
shall submit to the legislature an estimate of the total taxable value of all property in
the state as determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code, for the following biennium.
(b)iiThe agency and the commissioner of the State Board on Property Valuation
[comptroller] shall update the information provided to the legislature under
Subsection (a) not later than March 1 of each odd-numbered year.
SECTIONi13.iiSection 42.257(a), Education Code, is amended to read as follows:
(a)iiIf the final determination of an appeal under Chapter 42, Tax Code, results in
a reduction in the taxable value of property that exceeds five percent of the total
taxable value of property in the school district for the same tax year determined under
Subchapter B, Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, the
commissioner shall request the commissioner of the State Board on Property
Valuation [comptroller] to adjust the [its] taxable property value findings for that year
consistent with the final determination of the appraisal appeal.
SECTIONi14.iiSection 42.302(a), Education Code, is amended to read as follows:
4074 78th Legislature — Regular Session 82nd Day
(a)iiEach school district is guaranteed a specified amount per weighted student in state and local funds for each cent of tax effort over that required for the district's local fund assignment up to the maximum level specified in this subchapter. The amount of state support, subject only to the maximum amount under Section 42.303, is determined by the formula:
GYA = (GL X WADA X DTR X 100) - LR
where:
"GYA" is the guaranteed yield amount of state funds to be allocated to the district;
"GL" is the dollar amount guaranteed level of state and local funds per weighted student per cent of tax effort, which is $27.14 or a greater amount for any year provided by appropriation;
"WADA" is the number of students in weighted average daily attendance, which is calculated by dividing the sum of the school district's allotments under Subchapters B and C, less any allotment to the district for transportation, any allotment under Section 42.158, and 50 percent of the adjustment under Section 42.102, by the basic allotment for the applicable year;
"DTR" is the district enrichment tax rate of the school district, which is
determined by subtracting the amounts specified by Subsection (b) from the total
amount of maintenance and operations taxes collected by the school district for the
applicable school year and dividing the difference by the quotient of the district's
taxable value of property as determined under Subchapter B, Chapter 51, Tax
[Subchapter M, Chapter 403, Government] Code, or, if applicable, under Section
42.2521, divided by 100; and
"LR" is the local revenue, which is determined by multiplying "DTR" by the
quotient of the district's taxable value of property as determined under Subchapter B,
Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
under Section 42.2521, divided by 100.
SECTIONi15.iiSection 46.003(a), Education Code, is amended to read as follows:
(a)iiFor each year, except as provided by Sections 46.005 and 46.006, a school district is guaranteed a specified amount per student in state and local funds for each cent of tax effort, up to the maximum rate under Subsection (b), to pay the principal of and interest on eligible bonds issued to construct, acquire, renovate, or improve an instructional facility. The amount of state support is determined by the formula:
FYA = (FYL X ADA X BTR X 100) - (BTR X (DPV/100))
where:
"FYA" is the guaranteed facilities yield amount of state funds allocated to the district for the year;
"FYL" is the dollar amount guaranteed level of state and local funds per student per cent of tax effort, which is $35 or a greater amount for any year provided by appropriation;
"ADA" is the greater of the number of students in average daily attendance, as determined under Section 42.005, in the district or 400;
Friday, May 30, 2003 SENATE JOURNAL 4075
"BTR" is the district's bond tax rate for the current year, which is determined by
dividing the amount budgeted by the district for payment of eligible bonds by the
quotient of the district's taxable value of property as determined under Subchapter B,
Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
Section 42.2521, divided by 100; and
"DPV" is the district's taxable value of property as determined under Subchapter
B, Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
Section 42.2521.
SECTIONi16.iiSection 46.006(g), Education Code, is amended to read as follows:
(g)iiIn this section, "wealth per student" means a school district's taxable value of
property as determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code, or, if applicable, Section 42.2521, divided by the district's
average daily attendance as determined under Section 42.005.
SECTIONi17.iiSection 46.032(a), Education Code, is amended to read as follows:
(a)iiEach school district is guaranteed a specified amount per student in state and local funds for each cent of tax effort to pay the principal of and interest on eligible bonds. The amount of state support, subject only to the maximum amount under Section 46.034, is determined by the formula:
EDA = (EDGL X ADA X EDTR X 100) - (EDTR X (DPV/100))
where:
"EDA" is the amount of state funds to be allocated to the district for assistance with existing debt;
"EDGL" is the dollar amount guaranteed level of state and local funds per student per cent of tax effort, which is $35 or a greater amount for any year provided by appropriation;
"ADA" is the number of students in average daily attendance, as determined under Section 42.005, in the district;
"EDTR" is the existing debt tax rate of the district, which is determined by
dividing the amount budgeted by the district for payment of eligible bonds by the
quotient of the district's taxable value of property as determined under Subchapter B,
Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
under Section 42.2521, divided by 100; and
"DPV" is the district's taxable value of property as determined under Subchapter
B, Chapter 51, Tax [Subchapter M, Chapter 403, Government] Code, or, if applicable,
under Section 42.2521.
SECTIONi18.iiSections 825.405(h) and (i), Government Code, are amended to read as follows:
(h)iiThis section does not apply to state contributions for members employed by a school district in a school year if the district's effective tax rate for maintenance and operation revenues for the tax year that ended in the preceding school year equals or exceeds 125 percent of the statewide average effective tax rate for school district maintenance and operation revenues for that tax year. For a tax year, the statewide average effective tax rate for school district maintenance and operation revenues is the tax rate that, if applied to the statewide total appraised value of taxable property for
4076 78th Legislature — Regular Session 82nd Day
(i)iiNot later than the seventh day after the final date the commissioner of the
State Board on Property Valuation [comptroller] certifies to the commissioner of
education changes to the property value study conducted under Section 51.21, Tax
Code [Subchapter M, Chapter 403], the commissioner of the State Board on Property
Valuation [comptroller] shall certify to the Teacher Retirement System of Texas:
(1)iithe effective tax rate for school district maintenance and operation revenues for each school district in the state for the immediately preceding tax year; and
(2)iithe statewide average effective tax rate for school district maintenance and operation revenues for the immediately preceding tax year.
SECTIONi19.iiSection 61.040, Health and Safety Code, is amended to read as follows:
Sec.i61.040.iiTAX INFORMATION. (a) The commissioner of the State Board
on Property Valuation [comptroller] shall give the department information relating to[:
[(1)]iithe taxable value of property taxable by each county and each county's
applicable general revenue tax levy for the relevant period.
(b)iiThe comptroller shall give the department information relating to[; and
[(2)]iithe amount of sales and use tax revenue received by each county for
the relevant period.
SECTIONi20.iiSection 1152.204(c), Occupations Code, is amended to conform to the changes in terminology made by Chapter 836, Acts of the 77th Legislature, Regular Session, 2001, and is further amended to read as follows:
(c)iiThe executive director [commissioner] may recognize an educational
program or course:
(1)iirelated to property tax consulting services; and
(2)iioffered or sponsored by a public provider or a recognized private provider, including:
(A)iithe commissioner of the State Board on Property Valuation
[comptroller];
(B)iithe State Bar of Texas;
(C)iithe Texas Real Estate Commission;
(D)iian institution of higher education that meets program and accreditation standards comparable to those for public institutions of higher education as determined by the Texas Higher Education Coordinating Board; or
(E)iia nonprofit and voluntary trade association, institute, or organization:
(i)iiwhose membership consists primarily of persons who represent property owners in property tax or transactional tax matters;
(ii)iithat has written experience and examination requirements for membership or for granting professional designation to its members; and
(iii)iithat subscribes to a code of professional conduct or ethics.
SECTIONi21.iiSection 1.04, Tax Code, is amended by amending Subdivision (19) and adding Subdivision (20) to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 4077
(19)ii"Commissioner" ["Comptroller"] means the commissioner of the State
Board on Property Valuation [Comptroller of Public Accounts of the State of Texas].
(20)ii"Board" means the State Board on Property Valuation.
SECTIONi22.iiSection 1.111(h), Tax Code, is amended to read as follows:
(h)iiThe commissioner [comptroller] shall prescribe forms and adopt rules to
facilitate compliance with this section. The commissioner [comptroller] shall include
on any form used for designation of an agent for a single-family residential property
in which the property owner resides the following statement in boldfaced type:
"In some cases, you may want to contact your appraisal district or other local taxing units for free information and/or forms concerning your case before designating an agent."
SECTIONi23.iiChapter 5, Tax Code, is amended by adding Sections 5.01 and 5.02 to read as follows:
Sec.i5.01.iiSTATE BOARD ON PROPERTY VALUATION. (a) The State Board on Property Valuation is established. The board consists of five members appointed by the governor.
(b)iiMembers of the board hold office for terms of six years, with the terms of one or two members expiring March 1 of each odd-numbered year.
(c)iiTo be eligible to serve on the board, a person must:
(1)iihave been a resident of this state for at least 10 years; and
(2)iipossess knowledge, skill, and experience in property tax administration, property appraisal, or school finance.
(d)iiA person is not eligible to serve as a member of the board if the person or the person's spouse:
(1)iiis registered with or certified by the Board of Tax Professional Examiners;
(2)iiis employed by or participates in the management of a school district, an appraisal district, the office of an assessor or collector, or a business entity or other organization that is substantially and directly affected by the activities of the board or that does substantial business with the board; or
(3)iiuses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses.
(e)iiAppointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees.
(f)iiThe governor shall designate one of the members of the board to serve as presiding officer of the board. The presiding officer serves in that capacity for a term of two years expiring on March 1 of an odd-numbered year.
(g)iiThe board shall maintain its principal office in Austin.
(h)iiThe board shall meet at least once in each calendar quarter and shall meet at other times at the call of the presiding officer or as provided by the rules of the board.
(i)iiThe board is subject to the open meetings law, Chapter 551, Government Code, and the administrative procedure law, Chapter 2001, Government Code.
4078 78th Legislature — Regular Session 82nd Day
(j)iiA member of the board may not receive compensation for service on the board but is entitled to reimbursement for actual and necessary expenses incurred in performing functions as a board member, subject to any applicable limitation on reimbursement provided by the General Appropriations Act.
(k)iiIt is a ground for removal from the board if a member:
(1)iiviolates a prohibition established by Subsection (d);
(2)iicannot because of illness or disability discharge the member's duties for a substantial part of the term for which the member is appointed; or
(3)iiis absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year unless the absence is excused by majority vote of the board.
Sec.i5.02.iiBOARD PERSONNEL AND OPERATIONS. (a) The board shall employ the commissioner, who shall administer board policies and perform all duties as provided by law.
(b)iiThe commissioner shall employ and supervise professional, clerical, and other personnel necessary to perform all duties as required by law, board policy, and direction of the board or commissioner.
(c)iiThe commissioner shall provide to board staff, as often as necessary, information regarding their qualifications for employment under this chapter and their responsibilities under applicable laws relating to standards of conduct for state employees.
SECTIONi24.iiSection 5.03, Tax Code, is amended to read as follows:
Sec.i5.03.iiPOWERS AND DUTIES GENERALLY.ii(a)iiThe board
[comptroller] shall adopt rules establishing minimum standards for the administration
and operation of an appraisal district. The minimum standards may vary according to
the number of parcels and the kinds of property the district is responsible for
appraising.
(b)iiThe board [comptroller] may require from each district engaged in
appraising property for taxation an annual report on a form prescribed by the
commissioner [comptroller] on the administration and operation of the appraisal
office.
(c)iiThe board [comptroller] may contract with consultants to assist in
performance of the duties imposed by this chapter.
(d)iiThe board is responsible for ensuring that the commissioner performs the duties required by law of the commissioner.
(e)iiThe board has the powers necessary to carry out its powers and duties under this title.
(f)iiThe board may:
(1)iiadopt rules necessary to carry out the board's powers and duties under this title;
(2)iisue and be sued;
(3)iienter into contracts and other necessary instruments;
(4)iiimpose administrative fees and charges for the costs of publications;
(5)iipurchase liability insurance covering the board and employees and agents of the board; and
Friday, May 30, 2003 SENATE JOURNAL 4079
(6)iiestablish other policies, procedures, and eligibility criteria necessary to carry out the board's powers and duties under this title.
SECTIONi25.iiSection 5.04(a), Tax Code, is amended to read as follows:
(a)iiThe commissioner [comptroller] shall consult and cooperate with the Board
of Tax Professional Examiners or any successor agency responsible for certifying tax
professionals in this state in setting standards for and approving curricula and
materials for use in training and educating appraisers and assessor-collectors, and the
commissioner [comptroller] may cooperate with the board or with other public
agencies, educational institutions, or private organizations in sponsoring courses of
instruction and training programs.
SECTIONi26.iiSections 5.041(a), (c), (d), and (f), Tax Code, are amended to read as follows:
(a)iiThe board [comptroller] shall:
(1)iiapprove curricula and provide materials for use in training and educating members of an appraisal review board; and
(2)iisupervise a course for training and education of appraisal review board members and issue certificates indicating course completion.
(c)iiThe board [comptroller] may contract with service providers to assist with
the duties imposed under Subsection (a), but the course required may not be provided
by an appraisal district or a taxing unit. The board [comptroller] may assess a fee to
recover a portion of the costs incurred for the training course, but the fee may not
exceed $50 per person trained.
(d)iiThe course material for the course required under Subsection (a) is the
[comptroller's] Appraisal Review Board Manual prepared by the commissioner in use
on the effective date of this section. The manual shall be updated regularly. It may be
revised on request, in writing, to the board [comptroller]. The revision language must
be approved on the unanimous agreement of a committee selected by the board
[comptroller] and representing, equally, taxpayers and chief appraisers. The person
requesting the revision shall pay the costs of mediation if the board [comptroller]
determines that mediation is required.
(f)iiThe commissioner [comptroller] may not advise a property owner, a property
owner's agent, an appraisal district, or an appraisal review board on a matter that the
commissioner [comptroller] knows is the subject of a protest to the appraisal review
board.
SECTIONi27.iiSections 5.05(a), (b), and (c), Tax Code, are amended to read as follows:
(a)iiThe commissioner [comptroller] shall prepare and issue:
(1)iia general appraisal manual;
(2)iispecial appraisal manuals;
(3)iicost, price, and depreciation schedules, with provision for inserting local market index factors and with a standard procedure for determining local market index factors;
(4)iinews and reference bulletins;
(5)iiannotated digests of all laws relating to property taxation; and
(6)iia handbook of all rules promulgated by the board or commissioner
[comptroller] relating to the property tax and its administration.
4080 78th Legislature — Regular Session 82nd Day
(b)iiThe commissioner [comptroller] shall revise or supplement all materials
periodically as necessary to keep them current.
(c)iiThe commissioner [comptroller] shall provide without charge one copy of all
materials to officials of local government who are responsible for administering the
property tax system. If a local government official requests more than one copy, the
commissioner [comptroller] may charge a reasonable fee to offset the costs of printing
and distributing the materials. The commissioner [comptroller] shall make the
materials available to members of the public but may charge a reasonable fee to offset
the costs of printing and distributing the materials.
SECTIONi28.iiSections 5.06, 5.07, 5.08, 5.09, 5.101, 5.14, and 5.16, Tax Code, are amended to read as follows:
Sec.i5.06.iiEXPLANATION OF TAXPAYER REMEDIES. (a) The
commissioner [comptroller] shall prepare and publish a pamphlet explaining the
remedies available to dissatisfied taxpayers and the procedures to be followed in
seeking remedial action. The commissioner [comptroller] shall include in the
pamphlet advice on preparing and presenting a protest.
(b)iiThe commissioner [comptroller] shall provide without charge a reasonable
number of copies of the pamphlet to any person on request. The commissioner
[comptroller] may charge a person who requests multiple copies of the pamphlet a
reasonable fee to offset the costs of printing and distributing those copies. The
commissioner [comptroller] at its discretion shall determine the number of copies that
a person may receive without charge.
Sec.i5.07.iiPROPERTY TAX FORMS AND RECORDS SYSTEMS. (a) The
commissioner [comptroller] shall prescribe the contents of all forms necessary for the
administration of the property tax system and on request shall furnish sufficient copies
of model forms of each type to the appropriate local officials. The commissioner
[comptroller] may require reimbursement for the costs of printing and distributing the
forms.
(b)iiThe commissioner [comptroller] shall make the contents of the forms
uniform to the extent practicable but may prescribe or approve additional or substitute
forms for special circumstances.
(c)iiThe commissioner [comptroller] shall also prescribe a uniform record system
to be used by all offices appraising property for tax purposes.
Sec.i5.08.iiPROFESSIONAL AND TECHNICAL ASSISTANCE. (a) The
commissioner [comptroller] may provide professional and technical assistance on
request in appraising property, installing or updating tax maps, purchasing equipment,
developing recordkeeping systems, or performing other appraisal activities. The
commissioner [comptroller] may also provide professional and technical assistance on
request to an appraisal review board. The commissioner [comptroller] may require
reimbursement for the costs of providing the assistance.
(b)iiThe commissioner [comptroller] may provide information to and consult
with persons actively engaged in appraising property for tax purposes about any
matter relating to property taxation without charge.
Friday, May 30, 2003 SENATE JOURNAL 4081
Sec.i5.09.iiANNUAL REPORTS. (a) The commissioner [comptroller] shall
publish an annual report of the operations of the appraisal districts. The report shall
include for each appraisal district, each county, and each school district and may
include for other taxing units the total appraised values, assessed values, and taxable
values of taxable property by class of property, the assessment ratio, and the tax rate.
(b)iiThe commissioner [comptroller] shall deliver a copy of each annual report
published under Subsection (a) of this section to the governor, the lieutenant governor,
and each member of the legislature.
Sec.i5.101.iiTECHNICAL ADVISORY COMMITTEE. (a) The board
[comptroller] shall appoint a technical advisory committee for the purpose of
providing professional and practical expertise to the board [comptroller] and to review
and comment on the methodology used by the commissioner [comptroller] to conduct
the annual studies required by Section 51.21 and the ratio studies required by Section
51.41 [Section 5.10 of this code and by Section 403.302, Government Code]. A
member of the committee serves at the will of the board [comptroller].
(b)iiThe committee shall:
(1)iireview the methodology used by the commissioner [comptroller] to
conduct the studies described in Subsection (a);
(2)iimake an annual report to the commissioner [comptroller] that includes
the committee's findings and recommendations relating to the methodology used to
conduct the studies; and
(3)iimeet as often as necessary to perform its duties, but not less often than semiannually.
(c)iiThe board [comptroller] shall appoint the committee to provide for a
balanced representation of the general public and of professionals affiliated with the
entities affected by the studies.
(d)iiEach member of the committee must have expertise sufficient to determine
the accuracy of the [annual] studies and the appropriateness of the methods used to
develop the findings of the studies.
(e)iiThe board [comptroller] shall specify the committee's purpose, powers, and
duties and shall require the committee to report to the board [comptroller] in a manner
specified by the board [comptroller] relating to the committee's activities and the
results of its work.
(f)iiA member of the committee may receive compensatory per diem for serving
on the committee and is entitled to reimbursement for transportation expenses and the
per diem meals and lodging allowance as provided for the board [comptroller] and for
commission members in the General Appropriations Act.
(g)iiThe commissioner [comptroller] shall make the committee's annual report
available to the public on request.
Sec.i5.14.iiPUBLIC ACCESS, INFORMATION, AND COMPLAINTS. (a) The
board [comptroller] shall develop and implement policies that provide the public with
a reasonable opportunity to submit information on any property tax issue under the
jurisdiction of the board [comptroller].
4082 78th Legislature — Regular Session 82nd Day
(b)iiThe board [comptroller] shall prepare and maintain a written plan that
describes how a person who does not speak English or who has a physical, mental, or
developmental disability may be provided reasonable access to the board's
[comptroller's] programs.
(c)iiThe board [comptroller] shall prepare information of public interest
describing the property tax functions of the office of the board [comptroller] and the
board's [comptroller's] procedures by which complaints are filed with and resolved by
the board [comptroller]. The board [comptroller] shall make the information available
to the public and appropriate state agencies.
(d)iiIf a written complaint is filed with the board [comptroller] that the board
[comptroller] has authority to resolve, the board [comptroller], at least quarterly and
until final disposition of the complaint, shall notify the parties to the complaint of the
status of the complaint unless notice would jeopardize an undercover investigation.
(e)iiThe board [comptroller] shall keep an information file about each complaint
filed with the board [comptroller] that the board [comptroller] has authority to resolve.
Sec.i5.16.iiADMINISTRATIVE PROVISIONS. (a) The commissioner
[comptroller] may inspect the records or other materials of an appraisal office or
taxing unit, including the relevant records and materials in the possession or control of
a consultant, advisor, or expert hired by the appraisal office or taxing unit, for the
purpose of[:
[(1)]iiestablishing, reviewing, or evaluating the value of or an appraisal of
any property[; or
[(2)iiconducting a study, review, or audit required by Section 5.10 or 5.102
or by Section 403.302, Government Code].
(b)iiOn request of the commissioner [comptroller], the chief appraiser or
administrative head of the taxing unit shall produce the materials in the form and
manner prescribed by the commissioner [comptroller].
SECTIONi29.iiSection 6.025(a), Tax Code, is amended to read as follows:
(a)iiThe chief appraisers of two or more appraisal districts that have boundaries that include any part of the same territory shall enter into a written understanding that, with respect to the property located in the territory in which each of the districts has appraisal jurisdiction:
(1)iipermits each appraiser to have access to and use information appropriate to appraisals, including a record of an exemption application, rendition, or other property owner report;
(2)iieliminates differences in the information in appraisal records of the districts, including information relating to ownership of property, the description of property, and the physical characteristics of property; and
(3)iicontains the form of a written advisory prescribed by the commissioner
[comptroller] informing the owners of property that reports and other documents
required of the owners must be filed with or sent to each appraisal district and that the
owners should consider sending any other document relating to the property to each
appraisal district.
Friday, May 30, 2003 SENATE JOURNAL 4083
SECTIONi30.iiSection 6.235(a), Tax Code, is amended to read as follows:
(a)iiDuring each full term of office, a county assessor-collector of a county with a
population of 1,000,000 or more shall complete 64 or more classroom hours of
instruction that relate to the duties of the office and that are accredited by the Board of
Tax Professional Examiners, the commissioner [division of the office of comptroller
with responsibility for property taxes], the division of the Texas Department of
Transportation with responsibility for motor vehicles, or the secretary of state as
continuing education credits for the office of county assessor-collector.
SECTIONi31.iiSections 6.28(b), (d), and (e), Tax Code, are amended to read as follows:
(b)iiThe bond for state taxes must be payable to the governor and his successors
in office in an amount equal to five percent of the net state collections from motor
vehicle sales and use taxes and motor vehicle registration fees in the county during the
year ending August 31 preceding the date bond is given, except that the amount of
bond may not be less than $2,500 or more than $100,000. To be effective, the bond
must be approved by the commissioners court of the county and the commissioner
[state comptroller of public accounts].
(d)iiThe commissioner [state comptroller of public accounts] or the
commissioners court of the county may require a new bond for state taxes at any time.
The commissioners court may require a new bond for county taxes at any time.
However, the total amount of state bonds or county bonds required of an
assessor-collector may not exceed $100,000 at one time. The commissioners court
shall suspend the assessor-collector from office and begin removal proceedings if the
assessor-collector [he] fails to give new bond within a reasonable time after demand.
(e)iiThe assessor-collector's official oath and bonds for state and county taxes
shall be recorded in the office of the county clerk, and the county judge shall submit
the bond for state taxes to the commissioner [state comptroller of public accounts].
SECTIONi32.iiSection 6.412(c), Tax Code, is amended to read as follows:
(c)iiA person is ineligible to serve on the appraisal review board if the person is a
member of the board of directors, an officer, or employee of the appraisal district, an
employee of the commissioner [comptroller], or a member of the governing body,
officer, or employee of a taxing unit.
SECTIONi33.iiSection 11.11(b), Tax Code, is amended to read as follows:
(b)iiLand owned by the Permanent University Fund is taxable for county
purposes. Any notice required by Section 25.19 of this code shall be sent to the
commissioner [comptroller], and the commissioner [comptroller] shall appear in
behalf of the state in any protest or appeal relating to taxation of Permanent University
Fund land.
SECTIONi34.iiSection 11.182(f), Tax Code, as added by Chapter 842, Acts of the 77th Legislature, Regular Session, 2001, is relettered and amended to read as follows:
(i)i[(f)]iiIf any property owned by an organization receiving an exemption under
this section has been acquired or sold during the preceding year, such organization
shall file by March 31 of the following year with the chief appraiser in the county in
which the relevant property is located, on a form promulgated by the commissioner
[comptroller of public accounts], a list of such properties acquired or sold during the
preceding year.
4084 78th Legislature — Regular Session 82nd Day
SECTIONi35.iiSections 11.252(c), (d), (i), and (j), Tax Code, are amended to read as follows:
(c)iiThe commissioner [comptroller] by rule shall establish exemption
application requirements and appropriate procedures to determine whether a motor
vehicle subject to a lease qualifies for an exemption under Subsection (a).
(d)iiIn connection with the requirements and procedures under Subsection (c),
the commissioner [comptroller] by rule shall adopt a form to be completed by the
lessee of a motor vehicle for which the owner of the vehicle may apply for an
exemption under Subsection (a). The form shall require the lessee to provide the
lessee's name, address, and driver's license or personal identification certificate
number and to certify under oath that the lessee does not hold the vehicle for the
production of income and that the vehicle is used primarily for activities that do not
involve the production of income. The commissioner [comptroller] shall include on
the form a notice of the penalties prescribed by Section 37.10, Penal Code, for making
a false statement on the form.
(i)iiIn addition to the requirements of Subsections (c) and (d), the commissioner
[comptroller] by rule shall prescribe a property report form to be completed by the
lessor describing the leased motor vehicles that the lessor owns. The property report
form shall require the lessor to list each leased vehicle the lessor owns on January 1,
to provide the year, make, model, and vehicle identification number of each leased
vehicle, and to provide the name of the lessee, the address at which the vehicle is kept,
and an indication of whether the lessee has designated the vehicle as not held for the
production and not used for the production of income.
(j)iiThe lessor shall provide the chief appraiser with the completed property
report form adopted by the commissioner [comptroller] in the manner provided by
Subchapter B, Chapter 22.
SECTIONi36.iiSection 11.26(e), Tax Code, is amended to read as follows:
(e)iiFor each school district in an appraisal district, the chief appraiser shall
determine the portion of the appraised value of residence homesteads of the elderly on
which school district taxes are not imposed in a tax year because of the limitation on
tax increases imposed by this section. That portion is calculated by determining the
taxable value that, if multiplied by the tax rate adopted by the school district for the
tax year, would produce an amount equal to the amount of tax that would have been
imposed by the school district on residence homesteads of the elderly if the limitation
on tax increases imposed by this section were not in effect, but that was not imposed
because of that limitation. The chief appraiser shall determine that taxable value and
certify it to the commissioner [comptroller] as soon as practicable for each tax year.
SECTIONi37.iiSection 11.27(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller], with the assistance of the Texas Energy and
Natural Resources Advisory Council, or its successor, shall develop guidelines to
assist local officials in the administration of this section.
SECTIONi38.iiSection 11.43(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller], in prescribing the contents of the
application form for each kind of exemption, shall ensure that the form requires an
applicant to furnish the information necessary to determine the validity of the
exemption claim. The form must require an applicant to provide the applicant's name
Friday, May 30, 2003 SENATE JOURNAL 4085
(1)ii"Driver's license" has the meaning assigned that term by Section 521.001, Transportation Code.
(2)ii"Personal identification certificate" means a certificate issued by the Department of Public Safety under Subchapter E, Chapter 521, Transportation Code.
SECTIONi39.iiSection 11.44(c), Tax Code, is amended to read as follows:
(c)iiThe commissioner [comptroller] shall prescribe by rule the content of the
explanation required by Subsection (a) [of this section], and shall require that each
exemption application form be printed and prepared:
(1)iias a separate form from any other form; or
(2)iion the front of the form if the form also provides for other information.
SECTIONi40.iiSection 21.03(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] shall adopt rules:
(1)iiidentifying the kinds of property subject to this section; and
(2)iiestablishing formulas for calculating the proportion of total market value to be allocated to this state.
SECTIONi41.iiSections 21.031(e) and (f), Tax Code, are amended to read as follows:
(e)iiTo receive an allocation of value under this section, a property owner must
apply for the allocation on a form that substantially complies with the form prescribed
by the commissioner [comptroller]. The application must be filed with the chief
appraiser for the district in which the property to which the application applies is
taxable before the approval of the appraisal records by the appraisal review board as
provided by Section 41.12 [of this code].
(f)iiThe commissioner [comptroller] shall promulgate forms and may adopt rules
consistent with the provisions of this section.
SECTIONi42.iiSection 22.21, Tax Code, is amended to read as follows:
Sec.i22.21.iiPUBLICIZING REQUIREMENTS. Each year the commissioner
[comptroller] and each chief appraiser shall publicize in a manner reasonably designed
to notify all property owners the requirements of the law relating to filing rendition
statements and property reports and of the availability of forms.
SECTIONi43.iiSections 22.24(a), (c), and (e), Tax Code, are amended to read as follows:
(a)iiA person required to render property or to file a report as provided by this
chapter shall use a form that substantially complies with the appropriate form
prescribed or approved by the commissioner [comptroller].
(c)iiThe commissioner [comptroller] may prescribe or approve different forms
for different kinds of property but shall ensure that each form requires a property
owner to furnish the information necessary to identify the property and to determine
4086 78th Legislature — Regular Session 82nd Day
(e)iiTo be valid, a rendition or report must be sworn to before an officer
authorized by law to administer an oath. The commissioner [comptroller] may not
prescribe or approve a rendition or report form unless the form provides for the person
filing the form to swear that the information provided in the rendition or report is true
and accurate to the best of the person's knowledge and belief. This subsection does
not apply to a rendition or report filed by the property owner, an employee of the
property owner, or an employee of a property owner on behalf of an affiliated entity of
the property owner.
SECTIONi44.iiSections 22.27(a), (b), and (d), Tax Code, are amended to read as follows:
(a)iiRendition statements, real and personal property reports, attachments to
those statements and reports, and other information the owner of property provides to
the appraisal office in connection with the appraisal of the property, including income
and expense information related to a property filed with an appraisal office and
information voluntarily disclosed to an appraisal office or the commissioner
[comptroller] about real or personal property sales prices after a promise it will be
held confidential, are confidential and not open to public inspection. The statements
and reports and the information they contain about specific real or personal property
or a specific real or personal property owner and information voluntarily disclosed to
an appraisal office about real or personal property sales prices after a promise it will
be held confidential may not be disclosed to anyone other than an employee of the
appraisal office who appraises property except as authorized by Subsection (b) [of this
section].
(b)iiInformation made confidential by this section may be disclosed:
(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who filed the statement or report or the owner of property subject to the statement, report, or information or to a representative of either authorized in writing to receive the information;
(3)iito the commissioner [comptroller] and the commissioner's
[comptroller's] employees authorized by the commissioner [comptroller] in writing to
receive the information or to an assessor or a chief appraiser if requested in writing;
(4)iiin a judicial or administrative proceeding relating to property taxation to which the person who filed the statement or report or the owner of the property that is a subject of the statement, report, or information is a party;
(5)iifor statistical purposes if in a form that does not identify specific property or a specific property owner;
(6)iiif and to the extent the information is required to be included in a public document or record that the appraisal office is required to prepare or maintain; or
(7)iito a taxing unit or its legal representative that is engaged in the collection of delinquent taxes on the property that is the subject of the information.
Friday, May 30, 2003 SENATE JOURNAL 4087
(d)iiNo person who directly or indirectly provides information to the
commissioner [comptroller] or appraisal office about real or personal property sales
prices, either as set forth in Subsection (a) [of this section] under a promise of
confidentiality, or otherwise, shall be liable to any other person as the result of
providing such information.
SECTIONi45.iiSection 23.121(a)(6), Tax Code, is amended to read as follows:
(6)ii"Declaration" means the dealer's motor vehicle inventory declaration
form promulgated by the commissioner [comptroller] as required by this section.
SECTIONi46.iiSection 23.121(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] shall promulgate a form entitled Dealer's
Motor Vehicle Inventory Declaration. Except as provided by Section 23.122(l) [of this
code], not later than February 1 of each year, or, in the case of a dealer who was not in
business on January 1, not later than 30 days after commencement of business, each
dealer shall file a declaration with the chief appraiser and file a copy with the
collector. For purposes of this subsection, a dealer is presumed to have commenced
business on the date of issuance to the dealer of a dealer's general distinguishing
number as provided by Chapter 503, Transportation Code. Notwithstanding the
presumption created by this subsection, a chief appraiser may, at the chief appraiser's
[his or her] sole discretion, designate as the date on which a dealer commenced
business a date other than the date of issuance to the dealer of a dealer's general
distinguishing number. The declaration is sufficient to comply with this subsection if
it sets forth the following information:
(1)iithe name and business address of each location at which the dealer owner conducts business;
(2)iieach of the dealer's general distinguishing numbers issued by the Texas Department of Transportation;
(3)iia statement that the dealer owner is the owner of a dealer's motor vehicle inventory; and
(4)iithe market value of the dealer's motor vehicle inventory for the current
tax year as computed under Section 23.121(b) [of this code].
SECTIONi47.iiSection 23.122(a)(9), Tax Code, is amended to read as follows:
(9)ii"Statement" means the Dealer's Motor Vehicle Inventory Tax Statement
filed on a form promulgated by the commissioner [comptroller] as required by this
section.
SECTIONi48.iiSection 23.122(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall promulgate a form entitled a Dealer's
Motor Vehicle Inventory Tax Statement. A dealer shall complete the form with respect
to each motor vehicle sold. A dealer may use no other form for that purpose. The
statement may include the information the commissioner [comptroller] deems
appropriate but shall include at least the following:
(1)iia description of the motor vehicle sold;
(2)iithe sales price of the motor vehicle;
(3)iithe unit property tax of the motor vehicle if any; and
(4)iithe reason no unit property tax is assigned if no unit property tax is assigned.
4088 78th Legislature — Regular Session 82nd Day
SECTIONi49.iiSection 23.123(c), Tax Code, is amended to read as follows:
(c)iiInformation made confidential by this section may be disclosed:
(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who filed the declaration or statement or to that person's representative authorized by the person in writing to receive the information;
(3)iito the commissioner [comptroller] or an employee of the commissioner
[comptroller] authorized by the commissioner [comptroller] to receive the
information;
(4)iito a collector or chief appraiser;
(5)iito a district attorney, criminal district attorney or county attorney
involved in the enforcement of a penalty imposed pursuant to Section 23.121 or
Section 23.122 [of this code];
(6)iifor statistical purposes if in a form that does not identify specific property or a specific property owner;
(7)iiif and to the extent that the information is required for inclusion in a public document or record that the appraisal or collection office is required by law to prepare or maintain; or
(8)iito the Texas Department of Transportation for use by that department in auditing compliance of its licensees with appropriate provisions of applicable law.
SECTIONi50.iiSection 23.124(a)(6), Tax Code, is amended to read as follows:
(6)ii"Declaration" means the dealer's vessel and outboard motor inventory
declaration form promulgated by the commissioner [comptroller] as required by this
section.
SECTIONi51.iiSection 23.124(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] shall promulgate a form entitled "Dealer's
Vessel and Outboard Motor Inventory Declaration." Except as provided by Section
23.125(l) [of this code], not later than February 1 of each year or, in the case of a
dealer who was not in business on January 1, not later than 30 days after
commencement of business, each dealer shall file a declaration with the chief
appraiser and file a copy with the collector. The declaration is sufficient to comply
with this subsection if it sets forth the following information:
(1)iithe name and business address of each location at which the dealer owner conducts business;
(2)iieach of the dealer's and manufacturer's numbers issued by the Parks and Wildlife Department;
(3)iia statement that the dealer owner is the owner of a dealer's vessel and outboard motor inventory; and
(4)iithe market value of the dealer's vessel and outboard motor inventory for the current tax year as computed under Subsection (b) of this section.
SECTIONi52.iiSection 23.1241(a)(4), Tax Code, is amended to read as follows:
(4)ii"Declaration" means a dealer's heavy equipment inventory declaration
form adopted by the commissioner [comptroller] under this section.
SECTIONi53.iiSection 23.1241(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] by rule shall adopt a dealer's heavy
equipment inventory declaration form. Except as provided by Section 23.1242(k), not
later than February 1 of each year, or, in the case of a dealer who was not in business
Friday, May 30, 2003 SENATE JOURNAL 4089
on January 1, not later than 30 days after commencement of business, each dealer shall file a declaration with the chief appraiser and file a copy with the collector. The declaration is sufficient to comply with this subsection if it sets forth:
(1)iithe name and business address of each location at which the declarant conducts business;
(2)iia statement that the declarant is the owner of a dealer's heavy equipment inventory; and
(3)iithe market value of the declarant's heavy equipment inventory for the current tax year as computed under Subsection (b).
SECTIONi54.iiSection 23.1242(a)(3), Tax Code, is amended to read as follows:
(3)ii"Statement" means the dealer's heavy equipment inventory tax
statement filed on a form adopted by the commissioner [comptroller] under this
section.
SECTIONi55.iiSection 23.1242(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] by rule shall adopt a dealer's heavy
equipment inventory tax statement form. A dealer shall complete the form with
respect to each item of heavy equipment sold. A dealer may use no other form for that
purpose. The statement may include the information the commissioner [comptroller]
considers appropriate but shall include at least the following:
(1)iia description of the item of heavy equipment sold, including any unique identification or serial number affixed to the item by the manufacturer;
(2)iithe sales price of the item of heavy equipment;
(3)iithe unit property tax of the item of heavy equipment, if any; and
(4)iithe reason no unit property tax is assigned if no unit property tax is assigned.
SECTIONi56.iiSection 23.125(a)(9), Tax Code, is amended to read as follows:
(9)ii"Statement" means the dealer's vessel and outboard motor inventory tax
statement filed on a form promulgated by the commissioner [comptroller] as required
by this section.
SECTIONi57.iiSection 23.125(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall promulgate a form entitled "Dealer's
Vessel and Outboard Motor Inventory Tax Statement." A dealer shall complete the
form with respect to each vessel and outboard motor sold. A dealer may use no other
form for that purpose. The statement may include the information the commissioner
[comptroller] deems appropriate but shall include at least the following:
(1)iia description of the vessel or outboard motor sold;
(2)iithe sales price of the vessel or outboard motor;
(3)iithe unit property tax of the vessel or outboard motor, if any; and
(4)iithe reason no unit property tax is assigned if no unit property tax is assigned.
SECTIONi58.iiSection 23.126(c), Tax Code, is amended to read as follows:
(c)iiInformation made confidential by this section may be disclosed:
(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who filed the declaration or statement or to that person's representative authorized by the person in writing to receive the information;
4090 78th Legislature — Regular Session 82nd Day
(3)iito the commissioner [comptroller] or an employee of the commissioner
[comptroller] authorized by the commissioner [comptroller] to receive the
information;
(4)iito a collector or chief appraiser;
(5)iito a district attorney, criminal district attorney, or county attorney
involved in the enforcement of a penalty imposed pursuant to Section 23.124 or
Section 23.125 [of this code];
(6)iifor statistical purposes if in a form that does not identify specific property or a specific property owner; or
(7)iiif and to the extent that the information is required for inclusion in a document or record that the appraisal or collection office is required by law to prepare or maintain.
SECTIONi59.iiSection 23.127(a)(3), Tax Code, is amended to read as follows:
(3)ii"Declaration" means a retail manufactured housing inventory
declaration form adopted by the commissioner [comptroller] under this section.
SECTIONi60.iiSection 23.127(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] by rule shall adopt a form entitled "Retail
Manufactured Housing Inventory Declaration." Except as provided by Section
23.128(k), not later than February 1 of each year or, in the case of a retailer who was
not in business on January 1, not later than the 30th day after the date the retailer
commences business, each retailer shall file a declaration with the chief appraiser and
file a copy with the collector. The declaration is sufficient to comply with this
subsection if it sets forth the following information:
(1)iithe name and business address of each location at which the retailer conducts business;
(2)iithe retailer's license number issued by the department;
(3)iia statement that the retailer is the owner of a retail manufactured housing inventory; and
(4)iithe market value of the retailer's manufactured housing inventory for the current tax year as computed under Subsection (b).
SECTIONi61.iiSection 23.128(a)(4), Tax Code, is amended to read as follows:
(4)ii"Statement" means the retail manufactured housing inventory tax
statement filed on a form adopted by the commissioner [comptroller] under this
section.
SECTIONi62.iiSection 23.128(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] by rule shall adopt a form entitled "Retail
Manufactured Housing Inventory Tax Statement." A retailer shall complete the form
with respect to each unit of manufactured housing sold. A retailer may not use another
form for that purpose. The statement shall include:
(1)iia description of the unit of manufactured housing sold, including any unique identification or serial number affixed to the unit by the manufacturer;
(2)iithe sales price of the unit of manufactured housing;
(3)iiany unit property tax of the unit of manufactured housing;
(4)iithe reason a unit property tax is not assigned if that is the case; and
(5)iiany other information the commissioner [comptroller] considers
appropriate.
Friday, May 30, 2003 SENATE JOURNAL 4091
SECTIONi63.iiSection 23.175(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] by rule shall develop and distribute to each
appraisal office appraisal manuals that specify methods and procedures to discount
future income from the sale of oil or gas from the interest to present value.
SECTIONi64.iiSections 23.41(b) and (e), Tax Code, are amended to read as follows:
(b)iiThe commissioner [comptroller] shall promulgate rules specifying the
methods to apply and the procedures to use in appraising land designated for
agricultural use.
(e)iiImprovements other than appurtenances to the land, the mineral estate, and
all land used for residential purposes and for processing harvested agricultural
products are appraised separately at market value. Riparian water rights, private roads,
dams, reservoirs, water wells, and canals, ditches, terraces, and similar reshaping of or
additions to the soil for agricultural purposes are appurtenances to the land, and the
effect of each on the value of the land for agricultural use shall be considered in
appraising the land. However, the commissioner [comptroller] shall provide that in
calculating average net income from land a deduction from income be allowed for an
appurtenance subject to depreciation or depletion.
SECTIONi65.iiSection 23.43(d), Tax Code, is amended to read as follows:
(d)iiThe commissioner [comptroller] in prescribing the contents of the
application forms shall ensure that each form requires a claimant to furnish the
information necessary to determine the validity of the claim. The commissioner
[comptroller] shall require that the form permit a claimant who has previously been
allowed an agricultural designation to indicate that previously reported information
has not changed and to supply only the eligibility information not previously reported.
SECTIONi66.iiSection 23.45(b), Tax Code, is amended to read as follows:
(b)iiInformation made confidential by this section may be disclosed:
(1)iiin a judicial or administrative proceeding pursuant to a lawful subpoena;
(2)iito the person who filed the application or to his representative authorized in writing to receive the information;
(3)iito the commissioner [comptroller] and his employees authorized by him
in writing to receive the information or to an assessor or a chief appraiser if requested
in writing;
(4)iiin a judicial or administrative proceeding relating to property taxation to which the person who filed the application is a party;
(5)iifor statistical purposes if in a form that does not identify specific property or a specific property owner; or
(6)iiif and to the extent the information is required to be included in a public document or record that the appraisal office is required to prepare or maintain.
SECTIONi67.iiSection 23.52(d), Tax Code, is amended to read as follows:
(d)iiThe commissioner [comptroller] by rule shall develop and distribute to each
appraisal office appraisal manuals setting forth this method of appraising qualified
open-space land, and each appraisal office shall use the appraisal manuals in
appraising qualified open-space land. The commissioner [comptroller] by rule shall
develop and the appraisal office shall enforce procedures to verify that land meets the
conditions contained in Subdivision (1) of Section 23.51 [of this code]. The rules,
4092 78th Legislature — Regular Session 82nd Day
SECTIONi68.iiSection 23.521(a), Tax Code, is amended to read as follows:
(a)iiThe Parks and Wildlife Department, with the assistance of the commissioner
[comptroller], shall develop standards for determining whether land qualifies under
Section 23.51(7) for appraisal under this subchapter. The commissioner [comptroller]
by rule shall adopt the standards developed by the Parks and Wildlife Department and
distribute those rules to each appraisal district. On request of the Parks and Wildlife
Department, the Texas Agricultural Extension Service shall assist the department in
developing the standards.
SECTIONi69.iiSections 23.54(b) and (c), Tax Code, are amended to read as follows:
(b)iiTo be valid, the application must:
(1)iibe on a form provided by the appraisal office and prescribed by the
commissioner [comptroller]; and
(2)iicontain the information necessary to determine the validity of the claim.
(c)iiThe commissioner [comptroller] shall include on the form a notice of the
penalties prescribed by Section 37.10, Penal Code, for making or filing an application
containing a false statement. The commissioner [comptroller], in prescribing the
contents of the application form, shall require that the form permit a claimant who has
previously been allowed appraisal under this subchapter to indicate that previously
reported information has not changed and to supply only the eligibility information
not previously reported.
SECTIONi70.iiSection 23.73(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] by rule shall develop and distribute to each
appraisal office appraisal manuals setting forth this method of appraising qualified
timber land, and each appraisal office shall use the appraisal manuals in appraising
qualified timber land. The commissioner [comptroller] by rule shall develop and the
appraisal office shall enforce procedures to verify that land meets the conditions
contained in Section 23.72 [of this code]. The rules, before taking effect, must be
approved by majority vote of a committee comprised of the following officials or their
designees: the commissioner, the governor, the comptroller, the attorney general, and
the agriculture commissioner[, and the Commissioner of the General Land Office].
SECTIONi71.iiSections 23.75(b) and (c), Tax Code, are amended to read as follows:
(b)iiTo be valid, the application must:
(1)iibe on a form provided by the appraisal office and prescribed by the
commissioner [comptroller]; and
(2)iicontain the information necessary to determine the validity of the claim.
(c)iiThe commissioner [comptroller] shall include on the form a notice of the
penalties prescribed by Section 37.10, Penal Code, for making or filing an application
containing a false statement. The commissioner [comptroller], in prescribing the
contents of the application form, shall require that the form permit a claimant who has
Friday, May 30, 2003 SENATE JOURNAL 4093
SECTIONi72.iiSection 23.83(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall promulgate rules specifying the
methods to apply and the procedures to use in appraising land under this subchapter.
SECTIONi73.iiSection 23.84(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] in prescribing the contents of the application
forms shall ensure that each form requires a claimant to furnish the information
necessary to determine the validity of the claim and that the form requires the claimant
to state that the land for which the claimant [he] claims appraisal under this subchapter
will be used exclusively for recreational, park, or scenic uses in the current year.
SECTIONi74.iiSection 23.93(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall promulgate rules specifying the
methods to apply and the procedures to use in appraising property under this
subchapter.
SECTIONi75.iiSection 23.94(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] in prescribing the contents of the application
forms shall ensure that each form requires a claimant to furnish the information
necessary to determine the validity of the claim and that the form requires the claimant
to state that the airport property for which the claimant [he] claims appraisal under this
subchapter will be used exclusively as public access airport property in the current
year.
SECTIONi76.iiSections 23.9804(b), (c), and (d), Tax Code, are amended to read as follows:
(b)iiTo be valid, an application for appraisal under Section 23.9802(a) must:
(1)iibe on a form provided by the appraisal office and prescribed by the
commissioner [comptroller];
(2)iiprovide evidence that the land qualifies for designation as an aesthetic management zone, critical wildlife habitat zone, or streamside management zone;
(3)iispecify the location of the proposed zone and the quantity of land, in acres, in the proposed zone; and
(4)iicontain other information necessary to determine the validity of the claim.
(c)iiTo be valid, an application for appraisal under Section 23.9802(b) must:
(1)iibe on a form provided by the appraisal office and prescribed by the
commissioner [comptroller];
(2)iiprovide evidence that the land on which the timber was harvested was appraised under Subchapter E in the year in which the timber was harvested;
(3)iiprovide evidence that all of the land has been regenerated in compliance with Section 23.9802(b)(2); and
(4)iicontain other information necessary to determine the validity of the claim.
(d)iiThe commissioner [comptroller] shall include on the form a notice of the
penalties prescribed by Section 37.10, Penal Code, for making or filing an application
containing a false statement. The commissioner [comptroller], in prescribing the
4094 78th Legislature — Regular Session 82nd Day
SECTIONi77.iiSection 24.32(c), Tax Code, is amended to read as follows:
(c)iiA report required by this section must be on a form prescribed by the
commissioner [comptroller]. In prescribing the form, the commissioner [comptroller]
shall ensure that it requires the information necessary to determine market value of
rolling stock used in this state.
SECTIONi78.iiSection 24.34(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] shall adopt rules establishing formulas for
interstate allocation of the value of railroad rolling stock.
SECTIONi79.iiSections 24.36, 24.365, 24.37, and 24.38, Tax Code, are amended to read as follows:
Sec.i24.36.iiCERTIFICATION TO COMMISSIONER [COMPTROLLER]. On
approval of the appraised value of the rolling stock as provided by Chapter 41 [of this
code], the chief appraiser shall certify to the commissioner [comptroller] the amount
of market value allocated to this state for each owner whose rolling stock is appraised
in the county and the name and business address of each owner.
Sec.i24.365.iiCORRECTION OF CERTIFIED AMOUNT. (a) A chief appraiser
who discovers that the chief appraiser's certification to the commissioner
[comptroller] of the amount of the market value of rolling stock allocated to this state
under Section 24.36 was incomplete or incorrect shall immediately certify the correct
amount of that market value to the commissioner [comptroller].
(b)iiAs soon as practicable after the commissioner [comptroller] receives the
correct certification from the chief appraiser, the commissioner [comptroller] shall
certify to the county assessor-collector for each affected county the information
required by Section 24.38 as corrected.
Sec.i24.37.iiINTRASTATE APPORTIONMENT. The commissioner
[comptroller] shall apportion the appraised value of each owner's rolling stock to each
county in which the railroad using it operates according to the ratio the mileage of
road owned by the railroad in the county bears to the total mileage of road the railroad
owns in this state.
Sec.i24.38.iiCERTIFICATION OF APPORTIONED VALUE. Before August 1,
the commissioner [comptroller] shall certify to the county assessor-collector for each
county in which a railroad operates:
(1)iithe county's apportioned amount of the market value of each owner's rolling stock; and
(2)iithe name and business address of each owner.
SECTIONi80.iiSection 24.40(a), Tax Code, is amended to read as follows:
(a)iiIf a chief appraiser discovers that rolling stock used in this state and subject
to appraisal by the chief appraiser [him] has not been appraised and apportioned to the
counties in one of the two preceding years, he shall appraise the property as of
January 1 for each year it was omitted, submit the appraisal for review and protest,
and certify the approved value to the commissioner [comptroller].
Friday, May 30, 2003 SENATE JOURNAL 4095
SECTIONi81.iiSection 25.011(b), Tax Code, is amended to read as follows:
(b)iiThe record for each type of specially appraised property must be maintained
in a separate document for each 12-month period beginning June 1. The document
must include the name of at least one owner of the property, the acreage of the
property, and other information sufficient to identify the property as required by the
commissioner [comptroller]. All entries in each document must be kept in alphabetical
order according to the last name of each owner whose name is part of the record.
SECTIONi82.iiSection 25.02(a), Tax Code, is amended to read as follows:
(a)iiThe appraisal records shall be in the form prescribed by the commissioner
[comptroller] and shall include:
(1)iithe name and address of the owner or, if the name or address is unknown, a statement that it is unknown;
(2)iireal property;
(3)iiseparately taxable estates or interests in real property, including taxable possessory interests in exempt real property;
(4)iipersonal property;
(5)iithe appraised value of land and, if the land is appraised as provided by Subchapter C, D, E, or H, Chapter 23, the market value of the land;
(6)iithe appraised value of improvements to land;
(7)iithe appraised value of a separately taxable estate or interest in land;
(8)iithe appraised value of personal property;
(9)iithe kind of any partial exemption the owner is entitled to receive, whether the exemption applies to appraised or assessed value, and, in the case of an exemption authorized by Section 11.23, the amount of the exemption;
(10)iithe tax year to which the appraisal applies; and
(11)iian identification of each taxing unit in which the property is taxable.
SECTIONi83.iiSection 25.025(b), Tax Code, is amended to read as follows:
(b)iiInformation in appraisal records under Section 25.02 is confidential and is
available only for the official use of the appraisal district, this state, the commissioner
[comptroller], and taxing units and political subdivisions of this state if:
(1)iithe information identifies the home address of a named individual to whom this section applies; and
(2)iithe individual chooses to restrict public access to the information on the
form prescribed for that purpose by the commissioner [comptroller] under Section
5.07.
SECTIONi84.iiSection 25.026(b), Tax Code, is amended to read as follows:
(b)iiInformation in appraisal records under Section 25.02 is confidential and is
available only for the official use of the appraisal district, this state, the commissioner
[comptroller], and taxing units and political subdivisions of this state if the
information identifies the address of a family violence shelter center or a sexual
assault program.
SECTIONi85.iiSection 25.03(b), Tax Code, is amended to read as follows:
(b)iiThe commissioner [comptroller] may adopt rules establishing minimum
standards for descriptions of property.
SECTIONi86.iiSections 25.19(i) and (j), Tax Code, are amended to read as follows:
4096 78th Legislature — Regular Session 82nd Day
(i)iiDelivery with a notice required by Subsection (a) or (g) of a copy of the
pamphlet published by the commissioner [comptroller] under Section 5.06 or a copy
of the notice published by the chief appraiser under Section 41.70 is sufficient to
comply with the requirement that the notice include the information specified by
Subsection (b)(7) or (g)(3), as applicable.
(j)iiThe chief appraiser shall include with a notice required by Subsection (a) or (g):
(1)iia copy of a notice of protest form as prescribed by the commissioner
[comptroller] under Section 41.44(d); and
(2)iiinstructions for completing and mailing the form to the appraisal review board and requesting a hearing on the protest.
SECTIONi87.iiSection 25.23(b), Tax Code, is amended to read as follows:
(b)iiSupplemental appraisal records shall be in the form prescribed by the
commissioner [comptroller] and shall include the items required by Section 25.02 [of
this code].
SECTIONi88.iiSection 26.01(b), Tax Code, is amended to read as follows:
(b)iiWhen a chief appraiser submits an appraisal roll for county taxes to a county
assessor-collector, the chief appraiser also shall certify the appraisal district appraisal
roll to the commissioner [comptroller]. However, the commissioner [comptroller] by
rule may provide for submission of only a summary of the appraisal roll. The chief
appraiser shall certify the district appraisal roll or the summary of that roll in the form
and manner prescribed by the commissioner's [comptroller's] rule.
SECTIONi89.iiSection 26.04(e), Tax Code, is amended to read as follows:
(e)iiBy August 7 or as soon thereafter as practicable, the designated officer or
employee shall submit the rates to the governing body. The designated officer or
employee [He] shall deliver by mail to each property owner in the unit or publish in a
newspaper in the form prescribed by the commissioner [comptroller]:
(1)iithe effective tax rate, the rollback tax rate, and an explanation of how they were calculated;
(2)iithe estimated amount of interest and sinking fund balances and the estimated amount of maintenance and operation or general fund balances remaining at the end of the current fiscal year that are not encumbered with or by corresponding existing debt obligation;
(3)iia schedule of the unit's debt obligations showing:
(A)iithe amount of principal and interest that will be paid to service the unit's debts in the next year from property tax revenue, including payments of lawfully incurred contractual obligations providing security for the payment of the principal of and interest on bonds and other evidences of indebtedness issued on behalf of the unit by another political subdivision and, if the unit is created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, payments on debts that the unit anticipates to incur in the next calendar year;
(B)iithe amount by which taxes imposed for debt are to be increased because of the unit's anticipated collection rate; and
(C)iithe total of the amounts listed in Paragraphs (A)-(B), less any amount collected in excess of the previous year's anticipated collections certified as provided in Subsection (b);
Friday, May 30, 2003 SENATE JOURNAL 4097
(4)iithe amount of additional sales and use tax revenue anticipated in calculations under Section 26.041;
(5)iia statement that the adoption of a tax rate equal to the effective tax rate would result in an increase or decrease, as applicable, in the amount of taxes imposed by the unit as compared to last year's levy, and the amount of the increase or decrease;
(6)iiin the year that a taxing unit calculates an adjustment under Subsection (i) or (j), a schedule that includes the following elements:
(A)iithe name of the unit discontinuing the department, function, or activity;
(B)iithe amount of property tax revenue spent by the unit listed under Paragraph (A) to operate the discontinued department, function, or activity in the 12 months preceding the month in which the calculations required by this chapter are made; and
(C)iithe name of the unit that operates a distinct department, function, or activity in all or a majority of the territory of a taxing unit that has discontinued operating the distinct department, function, or activity; and
(7)iiin the year following the year in which a taxing unit raised its rollback rate as required by Subsection (j), a schedule that includes the following elements:
(A)iithe amount of property tax revenue spent by the unit to operate the department, function, or activity for which the taxing unit raised the rollback rate as required by Subsection (j) for the 12 months preceding the month in which the calculations required by this chapter are made; and
(B)iithe amount published by the unit in the preceding tax year under Subdivision (6)(B).
SECTIONi90.iiSection 26.06(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] by rule shall prescribe the language and
format to be used in the part of the notice required by Subsection (b)(2). A notice
under Subsection (b) is not valid if it does not substantially conform to the language
and format prescribed by the commissioner [comptroller] under this subsection.
SECTIONi91.iiSection 31.01(c), Tax Code, is amended to read as follows:
(c)iiThe tax bill or a separate statement accompanying the tax bill shall:
(1)iiidentify the property subject to the tax;
(2)iistate the appraised value, assessed value, and taxable value of the property;
(3)iiif the property is land appraised as provided by Subchapter C, D, E, or H, Chapter 23, state the market value and the taxable value for purposes of deferred or additional taxation as provided by Section 23.46, 23.55, 23.76, or 23.9807, as applicable;
(4)iistate the assessment ratio for the unit;
(5)iistate the type and amount of any partial exemption applicable to the property, indicating whether it applies to appraised or assessed value;
(6)iistate the total tax rate for the unit;
(7)iistate the amount of tax due, the due date, and the delinquency date;
(8)iiexplain the payment option and discounts provided by Sections 31.03 and 31.05, if available to the unit's taxpayers, and state the date on which each of the discount periods provided by Section 31.05 concludes, if the discounts are available;
4098 78th Legislature — Regular Session 82nd Day
(9)iistate the rates of penalty and interest imposed for delinquent payment of the tax;
(10)iiinclude the name and telephone number of the assessor for the unit and, if different, of the collector for the unit; and
(11)iiinclude any other information required by the commissioner
[comptroller].
SECTIONi92.iiSection 31.032(f), Tax Code, is amended to read as follows:
(f)iiThe commissioner [comptroller] shall adopt rules to implement this section.
SECTIONi93.iiSection 31.075(a), Tax Code, is amended to read as follows:
(a)iiAt the request of a property owner or a property owner's agent, the collector
for a taxing unit shall issue a receipt showing the taxable value and the amount of tax
imposed by the unit on the property in one or more tax years for which the
information is requested, the tax rate for each of those tax years, and the amount of tax
paid in each of those years. The receipt must describe the property in the manner
prescribed by the commissioner [comptroller].
SECTIONi94.iiSection 31.11(c), Tax Code, is amended to read as follows:
(c)iiAn application for a refund must be made within three years after the date of the payment or the taxpayer waives the right to the refund. A taxpayer may apply for a refund by filing:
(1)iian application on a form prescribed by the commissioner [comptroller]
by rule; or
(2)iia written request that includes information sufficient to enable the auditor for the taxing unit and, if applicable, the governing body of the taxing unit to determine whether the taxpayer is entitled to the refund.
SECTIONi95.iiSection 33.43(e), Tax Code, is amended to read as follows:
(e)iiThe commissioner [comptroller] shall prepare forms for petitions initiating
suits to collect delinquent taxes. An attorney representing a taxing unit may use the
forms or develop a [his own] form.
SECTIONi96.iiSection 41.44(d), Tax Code, is amended to read as follows:
(d)iiA notice of protest is sufficient if it identifies the protesting property owner,
including a person claiming an ownership interest in the property even if that person is
not listed on the appraisal records as an owner of the property, identifies the property
that is the subject of the protest, and indicates apparent dissatisfaction with some
determination of the appraisal office. The notice need not be on an official form, but
the commissioner [comptroller] shall prescribe a form that provides for more detail
about the nature of the protest. The form must permit a property owner to include each
property in the appraisal district that is the subject of a protest. The commissioner
[comptroller], each appraisal office, and each appraisal review board shall make the
forms readily available and deliver one to a property owner on request.
SECTIONi97.iiSections 41.45(k) and (l), Tax Code, are amended to read as follows:
(k)iiThe commissioner [comptroller] shall prescribe a standard form for an
affidavit offered under Subsection (b). Each appraisal district shall make copies of the
affidavit form available to property owners without charge.
(l)iiA property owner is not required to use the affidavit form prescribed by the
commissioner [comptroller] when offering an affidavit under Subsection (b).
SECTIONi98.iiSection 41.461(a), Tax Code, is amended to read as follows:
(a)iiAt least 14 days before a hearing on a protest, the chief appraiser shall:
Friday, May 30, 2003 SENATE JOURNAL 4099
(1)iideliver a copy of the pamphlet prepared by the commissioner
[comptroller] under Section 5.06(a) to the property owner initiating the protest if the
owner is not represented by another person [representing himself], or to an agent
representing the owner if requested by the agent;
(2)iiinform the property owner that the owner or the agent of the owner may inspect and may obtain a copy of the data, schedules, formulas, and all other information the chief appraiser plans to introduce at the hearing to establish any matter at issue; and
(3)iideliver a copy of the hearing procedures established by the appraisal review board under Section 41.66 to the property owner.
SECTIONi99.iiSections 41.65 and 41.68, Tax Code, are amended to read as follows:
Sec.i41.65.iiREQUEST FOR STATE ASSISTANCE. The appraisal review board
may request the commissioner [comptroller] to assist in determining the accuracy of
appraisals by the appraisal office or to provide other professional assistance. The
appraisal office shall reimburse the costs of providing assistance if the commissioner
[comptroller] requests reimbursement.
Sec.i41.68.iiRECORD OF PROCEEDING. The appraisal review board shall
keep a record of its proceedings in the form and manner prescribed by the
commissioner [comptroller].
SECTIONi100.iiSection 41.70(a), Tax Code, is amended to read as follows:
(a)iiOn or after May 1 but not later than May 15, the chief appraiser shall publish notice of the manner in which a protest under this chapter may be brought by a property owner. The notice must describe how to initiate a protest and must describe the deadlines for filing a protest. The notice must also describe the manner in which
an order of the appraisal review board may be appealed. The commissioner
[comptroller] by rule shall adopt minimum standards for the form and content of the
notice required by this section.
SECTIONi101.iiSections 42.01, 42.03, and 42.05, Tax Code, are amended to read as follows:
Sec.i42.01.iiRIGHT OF APPEAL BY PROPERTY OWNER. A property owner is entitled to appeal:
(1)iian order of the appraisal review board determining:
(A)iia protest by the property owner as provided by Subchapter C of Chapter 41; or
(B)iia determination of an appraisal review board on a motion filed under Section 25.25; or
(2)iian order of the commissioner [comptroller] issued as provided by
Subchapter B, Chapter 24, apportioning among the counties the appraised value of
railroad rolling stock owned by the property owner.
Sec.i42.03.iiRIGHT OF APPEAL BY COUNTY. A county may appeal the order
of the commissioner [comptroller] issued as provided by Subchapter B, Chapter 24 of
this code apportioning among the counties the appraised value of railroad rolling
stock.
Sec.i42.05.iiCOMMISSIONER [COMPTROLLER] AS PARTY. The
commissioner [comptroller] is an opposing party in an appeal by:
(1)iia property owner of an order of the commissioner [comptroller]
determining a protest of the appraisal, interstate allocation, or intrastate apportionment
of transportation business intangibles; or
4100 78th Legislature — Regular Session 82nd Day
(2)iia county or a property owner of an order of the commissioner
[comptroller] apportioning among the counties the appraised value of railroad rolling
stock.
SECTIONi102.iiSections 42.06(a), (b), and (c), Tax Code, are amended to read as follows:
(a)iiTo exercise the party's right to appeal an order of an appraisal review board,
a party other than a property owner must file written notice of appeal within 15 days
after the date the party receives the notice required by Section 41.47 or, in the case of
a taxing unit, by Section 41.07 that the order appealed has been issued. To exercise
the right to appeal an order of the commissioner [comptroller], a party other than a
property owner must file written notice of appeal within 15 days after the date the
party receives the commissioner's [comptroller's] order. A property owner is not
required to file a notice of appeal under this section.
(b)iiA party required to file a notice of appeal under this section other than a
chief appraiser who appeals an order of an appraisal review board shall file the notice
with the chief appraiser of the appraisal district for which the appraisal review board is
established. A chief appraiser who appeals an order of an appraisal review board shall
file the notice with the appraisal review board. A party who appeals an order of the
commissioner [comptroller] shall file the notice with the commissioner [comptroller].
(c)iiIf the chief appraiser, a taxing unit, or a county appeals, the chief appraiser, if
the appeal is of an order of the appraisal review board, or the commissioner
[comptroller], if the appeal is of an order of the commissioner [comptroller], shall
deliver a copy of the notice to the property owner whose property is involved in the
appeal within 10 days after the date the notice is filed.
SECTIONi103.iiSection 42.21(b), Tax Code, is amended to read as follows:
(b)iiA petition for review brought under Section 42.02 must be brought against
the owner of the property involved in the appeal. A petition for review brought under
Section 42.031 must be brought against the appraisal district and against the owner of
the property involved in the appeal. A petition for review brought under Subdivision
(2) or (3) of Section 42.01 or under Section 42.03 must be brought against the
commissioner [comptroller]. Any other petition for review under this chapter must be
brought against the appraisal district. A petition for review is not required to be
brought against the appraisal review board, but may be brought against the appraisal
review board in addition to any other required party, if appropriate.
SECTIONi104.iiSection 42.22, Tax Code, as amended by Chapters 667 and 1033, Acts of the 73rd Legislature, Regular Session, 1993, is reenacted and amended to read as follows:
Sec.i42.22.iiVENUE. (a) Except as provided by Subsections (b) and (c), and by Section 42.221, venue is in the county in which the appraisal review board that issued the order appealed is located.
(b)iiVenue of an action brought under Section 42.01(1) is in the county in which the property is located or in the county in which the appraisal review board that issued the order is located.
(c)iiVenue is in Travis County if the order appealed was issued by the
commissioner [comptroller].
Friday, May 30, 2003 SENATE JOURNAL 4101
SECTIONi105.iiSection 42.23(b), Tax Code, is amended to read as follows:
(b)iiThe court may not admit in evidence the fact of prior action by the appraisal
review board or commissioner [comptroller], except to the extent necessary to
establish its jurisdiction.
SECTIONi106.iiSection 42.26(c), Tax Code, is amended to read as follows:
(c)iiFor purposes of establishing the median level of appraisal under Subsection
(a)(1), the median level of appraisal in the appraisal district as determined by the
commissioner [comptroller] under Section 51.41 [5.10] is admissible as evidence of
the median level of appraisal of a reasonable and representative sample of properties
in the appraisal district for the year of the commissioner's [comptroller's]
determination, subject to the Texas Rules of Evidence and the Texas Rules of Civil
Procedure.
SECTIONi107.iiSections 42.28 and 43.01, Tax Code, are amended to read as follows:
Sec.i42.28.iiAPPEAL OF DISTRICT COURT JUDGMENT. A party may
appeal the final judgment of the district court as provided by law for appeal of civil
suits generally, except that an appeal bond is not required of the chief appraiser, the
county, the commissioner [comptroller], or the commissioners court of a county.
Sec.i43.01.iiAUTHORITY TO BRING SUIT. A taxing unit may sue the
appraisal district that appraises property for the unit to compel the appraisal district to
comply with the provisions of this title, rules of the commissioner [comptroller], or
other applicable law.
SECTIONi108.iiSection 313.022(b), Tax Code, is amended to read as follows:
(b)iiFor purposes of determining the required minimum amount of a qualified
investment under Section 313.021(2)(A)(iv)(a), and the minimum amount of a
limitation on appraised value under Section 313.027(b), school districts to which this
subchapter applies are categorized according to the taxable value of property in the
district for the preceding tax year determined under Subchapter B, Chapter 51, Tax
[Subchapter M, Chapter 403, Government] Code, as follows:
| CATEGORY | TAXABLE VALUE OF PROPERTY |
| iiiiiiiiiiiI | $10 billion or more |
| iiiiiiiiiiII | $1 billion or more but less than $10 billion |
| iiiiiiiiiIII | $500 million or more but less than $1 billion |
| iiiiiiiiiIV | $100 million or more but less than $500 million |
| iiiiiiiiiiV | less than $100 million |
SECTIONi109.iiSection 313.052, Tax Code, is amended to read as follows:
Sec.i313.052.iiCATEGORIZATION OF SCHOOL DISTRICTS. For purposes of
determining the required minimum amount of a qualified investment under Section
313.021(2)(A)(iv)(a) and the minimum amount of a limitation on appraised value
under this subchapter, school districts to which this subchapter applies are categorized
according to the taxable value of industrial property in the district for the preceding
tax year determined under Subchapter B, Chapter 51, Tax [Subchapter M, Chapter
403, Government] Code, as follows:
| CATEGORY | TAXABLE VALUE OF INDUSTRIAL PROPERTY |
| iiiiiiiiiiiI | $200 million or more |
| iiiiiiiiiiII | $90 million or more but less than $200 million |
| iiiiiiiiiIII | $1 million or more but less than $90 million |
| iiiiiiiiiIV | $100,000 or more but less than $1 million |
| iiiiiiiiiiV | less than $100,000 |
4102 78th Legislature — Regular Session 82nd Day
SECTIONi110.iiSections 39.901(a), (b), (c), and (e), Utilities Code, are amended to read as follows:
(a)iiNot later than August 31 each year, the commissioner of the State Board on
Property Valuation [comptroller] shall certify to the Texas Education Agency the
statewide net loss in electric generating facility property value attributable to electric
utility restructuring. In calculating the statewide net loss in electric generating facility
property value, the commissioner of the State Board on Property Valuation
[comptroller] shall:
(1)iisubtract current year electric generating facility appraisal roll values, as defined by Section 25.24, Tax Code, from 1999 electric generating facility appraised values in each school district;
(2)iisum the resulting property value losses (positive differences);
(3)iisum the resulting property value gains (negative differences); and
(4)iisubtract the absolute value of the property value gains, subject to the limitation in Section 39.9011, from the absolute value of the property value losses to calculate a statewide net loss.
(b)iiThe Texas Education Agency shall determine the amount necessary to
compensate the state for the statewide net loss certified under Subsection (a) by
multiplying the statewide net loss by the average adopted property tax rate of the
school districts that had losses, weighted by the value losses in each school district,
and dividing the result by 100 and shall notify the commission of the amount
necessary to compensate the state for the reduction. The commissioner of the State
Board on Property Valuation [comptroller] shall provide the Texas Education Agency
the electric generating facility value losses in each school district used in Subsection
(a)(2) for use in calculating the weighted average property tax rate.
(c)iiThe amounts determined by the commissioner of the State Board on Property
Valuation [comptroller] and the Texas Education Agency under this section, for the
purposes of this section, are final and may not be appealed.
(e)iiThe commissioner of education and the commissioner of the State Board on
Property Valuation [comptroller] shall adopt rules necessary to implement this section,
including rules providing for public input.
SECTIONi111.iiThe following laws are repealed:
(1)iiSections 5.10, 5.102, 5.12, and 5.13, Tax Code; and
(2)iiSubchapter M, Chapter 403, Government Code.
SECTIONi112.ii(a) As soon as practicable on or after the effective date of this Act, the governor shall appoint the members of the State Board on Property Valuation. The initial members appointed shall draw lots so that one member's term expires March 1, 2005, two members' terms expire March 1, 2007, and two members' terms expire March 1, 2009. The board shall employ a commissioner as soon as practicable after a majority of the members of the board qualify for office.
(b)iiThe comptroller of public accounts and the commissioner of the State Board on Property Valuation shall coordinate the transfer of all aspects and functions of the comptroller relating to state administration of the property tax system to the board or commissioner, as applicable. The transfer shall be accomplished as soon as practicable but not later than the 45th day after the date the board employs the initial commissioner.
Friday, May 30, 2003 SENATE JOURNAL 4103
(c)iiThe transfer required by Subsection (b) of this section includes all assets, obligations, and liabilities of any kind relating to state administration of the property tax system, including all contracts, leases, real or personal property, personnel, furniture, computers and other equipment, files, and related materials used by the comptroller for that purpose.
(d)iiAll appropriations made to the comptroller for the operation of the property tax division, as well as the personnel assigned to the division, are transferred to the State Board on Property Valuation, except for the appropriations for support services provided by other divisions of the comptroller's office. Until the end of the state fiscal biennium that begins September 1, 2003, the comptroller, by interagency contract, shall continue to provide support to the State Board on Property Valuation for payroll, human resources, computer maintenance and technical assistance, printing and distribution of publications created by the board, and similar administrative services currently provided.
(e)iiAll forms, rules, and procedures relating to state administration of the property tax system adopted by the comptroller or administratively transferred to the comptroller and in effect on the effective date of this Act remain in effect on or after that date as if adopted by the State Board on Property Valuation or the commissioner of the State Board on Property Valuation, as applicable, until amended, repealed, withdrawn, or otherwise superseded by the board or commissioner.
(f)iiIn any protest, appeal, or other administrative or judicial action in which the comptroller is a party on the effective date of this Act in connection with a duty or function transferred from the comptroller to the State Board on Property Valuation or the commissioner of the State Board on Property Valuation, as applicable, by this Act, the board or commissioner is substituted for the comptroller on the effective date of this Act.
Floor Amendment No. 2
Amend Floor Amendment No. 1 to SB 671 in the following way:
On page 6, line 19, delete the words "or 2003".
On page 6, line 24, delete the words "and 2004-2005".
On page 7, line 4, delete "September 30, 2005" and replace it with the words "September 30, 2004".
Floor Amendment No. 3
Amend Floor Amendment No. 1 to SB 671 in the following way:
On page 58, line 11, after the word "commissioner" add the words "of the General Land Office".
On page 59, line 22, after the word "commissioner" add the words "of the General Land Office".
Floor Amendment No. 4
Amend Floor Amendment No. 1 by Wohlgemuth to SB 671 at the end of the bill (floor amendment page 80, following line 18) by adding the following:
4104 78th Legislature — Regular Session 82nd Day
SECTION 113. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2003.
Floor Amendment No. 5
Amend Floor Amendment No. 1 by Wohlgemuth to SB 671 as follows:
(1) In SECTION 1 of the bill, in proposed Paragraph (A), Subdivision (2), Section 51.02, Tax Code, between "study" and the comma (floor amendment page 1, line 23), insert "conducted for the year 2003 or a subsequent year".
(2) In SECTION 1 of the bill, in proposed Paragraph (B), Subdivision (2), Section 51.02, Tax Code, between "study" and the comma (floor amendment page 1, line 27), insert "conducted for the year 2003 or a subsequent year".
(3) In SECTION 1 of the bill, in proposed Paragraph (C), Subdivision (2), Section 51.02, Tax Code, between "study" and the comma (floor amendment page 1, line 29), insert "conducted for the year 2003 or a subsequent year".
(4) In SECTION 1 of the bill, in proposed Subsection (c), Section 51.21, Tax Code, at the end of the subsection (floor amendment page 3, line 16), add the following:
In determining whether the local value for a school district is valid, the commissioner shall use a margin of error that does not exceed five percent unless the commissioner determines that the size of the sample of properties necessary to make the determination makes the use of such a margin of error not feasible, in which case the commissioner may use a larger margin of error.
(5) In SECTION 1 of the bill, in proposed Section 51.21, Tax Code, between Subsections (g) and (h) (floor amendment page 6, between lines 17 and 18), insert the following subsection and renumber the subsequent subsections and cross-references to those subsections accordingly:
(h) Notwithstanding Subsection (g), if, after conducting the annual study for the two years following the second year for which the commissioner determines that a school district is an eligible school district, the commissioner determines that the local value for the school district is invalid for either of those years, the commissioner shall notify the commissioner of education that the school district's taxable value for the two years for which the commissioner determined that the district was an eligible school district was the state value rather than the local value as previously certified. The commissioner of education shall, by withholding amounts from subsequent allocations of state funds under Chapter 42, Education Code, recover from the school district an amount equal to the over allocation of state funds resulting from the certification of the local value rather than the state value for the two years for which the commissioner determined that the district was an eligible school district. If the school district does not receive a tier one allotment, the district shall remit to the comptroller for deposit to the credit of the foundation school fund an amount equal to the reduction in the district's total cost of purchasing attendance credits under Subchapter D, Chapter 41, Education Code, or educating nonresident students under Subchapter E, Chapter 41, Education Code, resulting from the certification of the local value rather than the state value for the two years for which the commissioner determined that the district was an eligible school district. This subsection does not
Friday, May 30, 2003 SENATE JOURNAL 4105
Floor Amendment No. 6
Amend Floor Amendment No. 1 to SB 671 as follows:
(1) Throughout the substitute, in each instance that "commissioner" is added, strike "commissioner" and reinstate "comptroller".
(2) Throughout the substitute, in each section in which "Commissioner of the State Board on Property Valuation" or "board" is added to replace "comptroller", strike the applicable term and reinstate "comptroller".
(3) Throughout the substitute, in each section in which "board" is added to replace "comptroller", strike "board" and reinstate "commissioner".
(4) Throughout the substitute, in each section in which "commissioner" is added to replace "division of the office of the comptroller with responsibility for property taxes", strike "commissioner" and reinstate "division of the office of the comptroller with responsibility for property taxes".
(5) Strike SECTION 6 of the substitute.
(6) In SECTION 20 of the substitute, on page 30, lines 10 and 11, strike added Subdivision (20), Section 1.04, Tax Code.
(7) Strike SECTION 23 of the substitute.
(8) Strike SECTION 112 of the substitute.
Floor Amendment No. 7
Amend Floor Amendment No. 1 by Wohlgemuth to SB 671 (floor amendment page 2, line 2), by striking "95 percent" and substituting "90 percent".
Floor Amendment No. 8
Amend Floor Amendment No. 1 by Wohlgemuth to SB 671 as follows:
(1) In SECTION 1 of the bill, in proposed Subsection (g), Section 51.21, Tax Code (floor amendment page 6, line 9), strike "If" and substitute "Except as provided by Subsection (l), if".
(2) In SECTION 1 of the bill, at the end of proposed Section 51.21, Tax Code (floor amendment page 7, between lines 29 and 30), insert the following:
(l) A school district that is determined to be an eligible school district may not again be determined to be an eligible school district before the 10th year after the year of the determination that the school district is an eligible school district.
Floor Amendment No. 1 on Third Reading
Amend SB 671 on third reading as follows:
(1) In SECTION 1 of the bill, in proposed Paragraph (A), Subdivision (2), Section 51.02, Tax Code, between "study" and the comma, strike "conducted for the year 2003 or a subsequent year".
(2) In SECTION 1 of the bill, in proposed Paragraph (B), Subdivision (2), Section 51.02, Tax Code, between "study" and the comma, strike "conducted for the year 2003 or a subsequent year".
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(3) In SECTION 1 of the bill, in proposed Paragraph (C), Subdivision (2), Section 51.02, Tax Code, between "study" and the comma, strike "conducted for the year 2003 or a subsequent year".
(4) In SECTION 1 of the bill, in proposed Subsection (g), Section 51.21, Tax Code, strike "Except as provided by Subsection (l), if" and substitute "If".
(5) In SECTION 1 of the bill, in proposed Section 51.21, Tax Code, strike Subsection (h) as added by Floor Amendment No. 5 by Smith and reletter the subsequent subsections and cross-references to those subsections accordingly.
(6) In SECTION 1 of the bill, in proposed Subsection 51.21, Tax Code, strike Subsection (l) as added by Floor Amendment No. 8 by Smith.
Floor Amendment No. 2 on Third Reading
Amend SB 671 on third reading as follows:
(1) Strike Floor Amendment No. 6 on second reading.
(2) In SECTION 112 of the bill as added by Floor Amendment No. 1 on second reading, in Subsection (b) of the section, strike the second sentence of the subsection and substitute the following:
The transfer shall occur on September 1, 2004. Until the transfer occurs, the functions of the State Board on Property Valuation or the commissioner of that board under this Act shall be performed by the comptroller.
(3) In SECTION 112 of the bill as added by Floor Amendment No. 1 on second reading, in Subsection (d) of the section, between "All appropriations made" and "to the comptroller", insert "for the state fiscal year beginning September 1, 2004,".
(4) In SECTION 112 of the bill as added by Floor Amendment No. 1 on second reading, in Subsection (d) of the section, strike "Until the end of the state fiscal biennium that begins September 1, 2003" and substitute "Until the end of the state fiscal year that begins September 1, 2004".
(5) In SECTION 112 of the bill as added by Floor Amendment No. 1 on second reading, in Subsection (e) of the section, strike "the effective date of this Act" and substitute "September 1, 2004".
(6) In SECTION 112 of the bill as added by Floor Amendment No. 1 on second reading, in Subsection (f) of the section, strike "is a party on the effective date of this Act" and substitute "is a party on September 1, 2004,".
(7) In SECTION 112 of the bill as added by Floor Amendment No. 1 on second reading, in Subsection (f) of the section, strike "comptroller on the effective date of this Act" and substitute "comptroller on September 1, 2004".
The amendments were read.
Senator Staples moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
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The Presiding Officer asked if there were any motions to instruct the conference committee on SB 671 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Staples, Chair; Ogden, Averitt, VanideiPutte, and Armbrister.
CONFERENCE COMMITTEE ON HOUSE BILL 471
Senator Lucio called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi471 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi471 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Lucio, Chair; Ogden, Madla, Lindsay, and Wentworth.
CONFERENCE COMMITTEE ON HOUSE BILL 1129
Senator Gallegos called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1129 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1129 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Gallegos, Chair; Deuell, Madla, Lindsay, and Brimer.
CONFERENCE COMMITTEE ON HOUSE BILL 1541
Senator Lindsay called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1541 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1541 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Lindsay, Chair; Armbrister, Averitt, Barrientos, and Shapiro.
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CONFERENCE COMMITTEE ON HOUSE BILL 1576
Senator Shapleigh called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1576 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1576 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Shapleigh, Chair; Fraser, Ellis, Nelson, and Ratliff.
CONFERENCE COMMITTEE ON HOUSE JOINT RESOLUTION 28
Senator Lucio called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HJRi28 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HJRi28 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Lucio, Chair; Ogden, Madla, Shapiro, and Armbrister.
CONFERENCE COMMITTEE ON HOUSE BILL 3622
Senator Deuell called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi3622 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi3622 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Deuell, Chair; Armbrister, Duncan, Carona, and Lindsay.
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(Senator Carona in Chair)
CONFERENCE COMMITTEE ON HOUSE BILL 1566
Senator Armbrister, on behalf of Senator Ratliff, called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1566 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1566 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Ratliff, Chair; VanideiPutte, Janek, Williams, and Averitt.
SENATE BILL 127 WITH HOUSE AMENDMENTS
Senator Armbrister, on behalf of Senator Fraser, called SBi127 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 127 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the handling, settling, and use of certain claims in the insurance business; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLEi1.iiWATER DAMAGE CLAIMS
SECTIONi1.01.iiSubchapter C, Chapter 5, Insurance Code, is amended by adding Article 5.35-4 to read as follows:
Art.i5.35-4.iiRESTRICTIONS ON USE OF CLAIMS HISTORY FOR WATER DAMAGE; PERMISSIBLE SURCHARGES
Sec.i1.iiPURPOSE. The purpose of this article is to protect persons and property from being unfairly stigmatized in obtaining residential property insurance by the filing of a water damage claim or claims under a residential property insurance policy.
Sec.i2.iiDEFINITIONS. In this article:
(1)ii"Insurer" means an insurance company, reciprocal or interinsurance exchange, mutual, capital stock company, county mutual insurance company, farm mutual insurance company, association, Lloyd's plan company, or other entity writing residential property insurance in this state. The term includes an affiliate as described by Section 2, Article 21.49-1, of this code or Section 823.003(a) of this code if that affiliate is authorized to write and is writing residential property insurance in this state. The term does not include the Texas Windstorm Insurance Association created and operated under Article 21.49 of this code or the FAIR Plan created and operated under Article 21.49A of this code.
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(2)ii"Residential property insurance" means insurance against loss to residential real property at a fixed location or tangible personal property provided in a homeowners policy, which includes a tenant policy, a condominium owners policy, or a residential fire and allied lines policy.
(3)ii"Underwriting guideline" means a rule, standard, guideline, or practice, whether written, oral, or electronic, that is used by an insurer or an agent of an insurer to decide whether to accept or reject an application for a residential property insurance policy or to determine how to classify the risks that are accepted for the purpose of determining a rate.
Sec.i3.iiRESTRICTIONS ON USE OF CLAIMS HISTORY FOR WATER DAMAGE. (a)iiUnderwriting guidelines relating to a water damage claim or claims used by an insurer shall be governed by rules adopted by the commissioner in accordance with the purpose of this article. An insurer may not use an underwriting guideline relating to a water damage claim or claims that is not in accordance with the rules adopted by the commissioner under this article.
(b)iiAn insurer shall file with the department its underwriting guidelines relating to a water damage claim or claims in accordance with the rules adopted by the commissioner.
Sec.i4.iiPREMIUM SURCHARGES FOR WATER DAMAGE CLAIMS. (a)iiAn insurer may assess a premium surcharge for water damage claims at the time a residential property insurance policy is issued in accordance with rules adopted by the commissioner. This surcharge shall be in addition to the premium that would be charged for the policy had the claim or claims not occurred. The commissioner shall determine by rule the amount of any surcharge that may be assessed under this subsection, except that the amount of the surcharge may not exceed 15 percent of the total premium that would be charged for the policy had the claim or claims not occurred. The insurer may continue to assess this premium surcharge for such period as the commissioner determines by rule.
(b)iiThe insurer may at the time of renewal of the policy assess an additional premium surcharge for water damage claims made in the preceding policy year as determined by the commissioner by rule. This surcharge shall be in addition to the premium that would be charged for the policy had the claim or claims not occurred and shall be in addition to the surcharge adopted by the commissioner under Subsection (a) of this section. The commissioner shall determine by rule the amount of any surcharge that may be assessed under this subsection, except that the amount of the surcharge may not exceed 15 percent of the total premium that would be charged for the policy had the claim or claims not occurred, excluding the amount of the surcharge provided in Subsection (a) of this section. The insurer may continue to assess this premium surcharge for a period determined by rule of the commissioner.
(c)iiThe commissioner may authorize a surcharge as provided by Subsection (a) or (b) of this section that is greater than 15 percent for risks with three or more water damage claims in accordance with rules adopted by the commissioner.
(d)iiIn determining the surcharges under this section, the commissioner may consider the number of water damage claims, the type of water damage claims, and the total amount paid for water damage claims.
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Sec.i5.iiRULEMAKING AUTHORITY. The commissioner shall adopt rules to accomplish the purposes of this article, including rules with regard to the definition of a water damage claim.
SECTIONi1.02.iiArticle 5.35-4, Insurance Code, as added by this article, applies only to a residential property insurance policy that is delivered or issued for delivery based on an application that is submitted on or after the effective date of this Act.
ARTICLE 2. CLAIMS HANDLING PROCEDURES AND TIME FRAMES
SECTIONi2.01.iiSubchapter E, Chapter 21, Insurance Code, is amended by adding Article 21.55A to read as follows:
Art. 21.55A. WATER DAMAGE CLAIMS
Sec.i1.iiPURPOSES. The purposes of this article are to:
(1)iiprovide for the prompt, efficient, and effective handling and processing of water damage claims filed under residential property insurance policies, including claims involving losses due to mold;
(2)iireduce the confusion and inconvenience policyholders experience in filing and resolving water damage claims filed under residential property insurance policies, including claims involving losses due to mold; and
(3)iireduce claim costs and premiums for residential property insurance issued in this state.
Sec.i2.iiAPPLICABILITY. This article applies to any insurer that handles or processes water damage claims filed under residential property insurance policies.
Sec.i3.iiRULES. (a) The commissioner may adopt rules that identify the types of water damage claims that require more prompt, efficient, and effective processing and handling than the processing and handling required under Article 21.55 of this code.
(b)iiThe commissioner by rule may regulate the following aspects of water damage claims:
(1)iirequired notice;
(2)iiacceptance and rejection of a claim;
(3)iiclaim handling and processing procedures and time frames;
(4)iiclaim investigation requirements, procedures, and time frames;
(5)iisettlement of claims; and
(6)iiany other area of claim processing, handling, and response determined to be relevant and necessary by the commissioner.
(c)iiA rule adopted under this section supersedes the minimum standards described by Article 21.55 of this code.
ARTICLEi3.iiLICENSING OF PUBLIC INSURANCE ADJUSTERS
SECTIONi3.01.iiSubsection (b), Section 1, Chapter 407, Acts of the 63rd Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's Texas Insurance Code), is amended to read as follows:
(b)ii"Adjuster" shall not include:
(1)iian attorney at law who adjusts insurance losses from time to time and incidental to the practice of law, and who does not advertise or represent that he is an adjuster;
(2)iia salaried employee of an insurer who is not regularly engaged in the adjustment, investigation, or supervision of insurance claims;
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(3)iipersons employed only for the purpose of furnishing technical assistance to a licensed adjuster, including, but not limited to, photographers, estimators, private detectives, engineers, handwriting experts, and attorneys at law;
(4)iia licensed agent or general agent of an authorized insurer who processes undisputed and/or uncontested losses for such insurer under policies issued by said agent or general agent;
(5)iia person who performs clerical duties with no negotiations with the parties on disputed and/or contested claims;
(6)iiany person who handles claims arising under life, accident and health insurance policies;
(7)iia person who is employed principally as a right-of-way agent or
right-of-way and claims agent and whose primary responsibility is the acquisition of
easements, leases, permits, or other real property rights and whose claims handling
arises out of operations under those easements, leases, permits, or other contracts or
contractual obligations; [or]
(8)iian individual who is employed to investigate suspected fraudulent insurance claims but who does not adjust losses or determine claims payments; or
(9)iia public insurance adjuster who is licensed under Article 21.07-5, Insurance Code.
SECTIONi3.02.iiSubchapter A, Chapter 21, Insurance Code, is amended by adding Article 21.07-5 to read as follows:
Art.i21.07-5.iiPUBLIC INSURANCE ADJUSTERS
Sec.i1.iiDEFINITIONS. In this article:
(1)ii"Licensee" means an individual licensed under this article as a public insurance adjuster.
(2)ii"Person" includes an individual, firm, company, association, organization, partnership, limited liability company, or corporation.
(3)(A)ii"Public insurance adjuster" means:
(i)iian individual who, for compensation:
(a)iiacts on behalf of an insured in negotiating for or effecting the settlement of a claim or claims for loss or damage under any policy of insurance covering real or personal property; or
(b)iion behalf of any other public insurance adjuster, investigates, settles, or adjusts or advises or assists an insured with a claim or claims for loss or damage under any policy of insurance covering real or personal property; or
(ii)iian individual who advertises, solicits business, or holds himself or herself out to the public as an adjuster of claims for loss or damage under any policy of insurance covering real or personal property.
(B)ii"Public insurance adjuster" does not include:
(i)iian officer or employee of the federal or state government or of a political subdivision of the state government while the officer or employee is engaged in the performance of official duties;
(ii)iian attorney engaged in the performance of the attorney's professional duties;
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(iii)iiinsurers admitted to do business in the state, and agents licensed by this state, engaged in the performance of their duties in connection with insurance transactions;
(iv)iithe legal owner of personal property that has been sold under a conditional sales agreement or a mortgagee under the terms of a chattel mortgage;
(v)iiany salaried office employee who performs exclusively clerical or administrative duties attendant to the disposition of the business regulated by this article;
(vi)iiphotographers, estimators, appraisers, engineers, and arbitrators who are employed by a public insurance adjuster exclusively for the purpose of furnishing technical assistance to the licensed public insurance adjuster; or
(vii)iia private investigator licensed under Chapter 1702, Occupations Code, while acting within the scope of that license.
Sec.i2.iiNOT LAW LICENSE. Nothing in this article shall be construed as entitling any person who is not licensed by the Supreme Court of Texas to practice law in this state.
Sec.i3.iiLICENSE REQUIRED; EXEMPTION. (a)ii A person may not act as a public insurance adjuster in this state or hold himself or herself out to be a public insurance adjuster in this state, unless the person holds a license or certificate issued by the commissioner under Section 5, 15, or 16 of this article.
(b)iiA license is not required for:
(1)iian attorney licensed to practice law in this state who has complied with Section 5(a)(6) of this article; or
(2)iia person licensed as a general property and casualty agent under Article 21.14 of this code while acting for an insured concerning a loss under a policy issued by that agent.
(c)iiAny contract for services regulated by this article that is entered into by an insured with a person who is in violation of Subsection (a) of this section may be voided at the option of the insured, and if a contract is so voided, the insured shall not be liable for the payment of any past services rendered, or future services to be rendered, by that person under that contract or otherwise.
(d)iiIf the commissioner believes that a person is engaging in acts or practices in violation of Subsection (a) of this section, the commissioner ex parte may issue an emergency cease and desist order, in accordance with Subchapter B, Chapter 83, of this code requiring the person to immediately cease and desist from engaging further in the acts or practices.
Sec.i4.iiAPPLICATION FOR LICENSE. (a)iiAn application for a license under this article must be on a form prescribed by the commissioner.
(b)iiThe completed application must be notarized and be accompanied by a license application fee, as provided by Section 11 of this article, for each application submitted. The application fee is nonrefundable.
Sec.i5.iiQUALIFICATIONS FOR LICENSE; ISSUANCE. (a) The commissioner shall issue a public insurance adjuster license to an applicant on determining that the application meets the requirements of this article, that the license application fee has been paid, and that the applicant is an individual who:
(1)iiis at least 18 years of age;
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(2)iiis a citizen of the United States or has complied with all federal laws pertaining to employment or to the transaction of business in the United States;
(3)iiis a resident of this state;
(4)iiis trustworthy and of a moral character that reasonably ensures that the applicant will conduct the business of a public insurance adjuster fairly and in good faith without detriment to the public;
(5)iihas not been convicted of a felony in the 10 years immediately preceding filing an application under this article or, if convicted of a felony in the 10 years immediately preceding filing an application under this article, has received a full pardon from that conviction and is otherwise relieved from any disabilities connected with that conviction;
(6)iihas sufficient experience or training relating to the assessment of:
(A)iireal and personal property values; and
(B)iiphysical loss of or damage to real or personal property that may be the subject of insurance and claims under insurance;
(7)iiis sufficiently informed as to the terms and effects of the types of insurance contracts that provide coverage on real and personal property;
(8)iipossesses knowledge and experience adequate to enable the applicant to engage in the business of a public insurance adjuster fairly and without injury to the public or any member of the public with whom the applicant may have business as a public insurance adjuster;
(9)iihas successfully passed the license examination prescribed under Section 8 of this article or is exempt from the examination requirement under this article;
(10)iihas complied with the financial responsibility requirements imposed under Section 6 of this article; and
(11)iihas complied with any other requirements under applicable state law, including providing a complete set of fingerprints on request as provided by Article 1.10C of this code.
(b)iiThe commissioner may issue a resident public adjuster license to an applicant who has been convicted of a felony 11 or more years before filing an application under this article if the commissioner determines that the applicant is qualified to act as a public adjuster and that the circumstances surrounding the applicant's conviction do not warrant the denial of a license issued under this chapter.
Sec.i6.iiFINANCIAL RESPONSIBILITY REQUIREMENTS. (a)iiAs a continuing condition of licensure, a public insurance adjuster must file proof of financial responsibility with respect to transactions with insureds under this article in an amount determined by the commissioner by rule. The financial responsibility shall include the ability to pay sums the public insurance adjuster is obligated to pay under any judgment against the public insurance adjuster by an insured, based on an error, omission, fraud, negligent act, or unfair practice of the public insurance adjuster or any person for whose acts the public insurance adjuster is legally liable in the transaction of the public insurance adjuster's business under this code. In determining the amount of the financial responsibility requirement, the commissioner shall consider the nature of the obligation, other financial security requirements under this code, and financial security requirements adopted for public insurance adjusters in
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(b)iiIn addition to any other remedy available under this code, if the commissioner believes that a person is committing a violation by failing to maintain the financial responsibility requirements of this section, the commissioner ex parte may issue an emergency cease and desist order and suspend the person's license, in accordance with Subchapter B, Chapter 83, of this code, requiring the person to immediately cease and desist from engaging in the activities of a public insurance adjuster.
(c)iiA license suspended under Subsection (b) of this section may be reinstated on the approval of an application for reinstatement filed with the commissioner, in the form prescribed by the commissioner, with proof that the financial responsibility requirements of this section have been met. The commissioner may deny the application for reinstatement:
(1)iifor any reason that would justify a refusal to issue, or a suspension or revocation of, a license; or
(2)iifor the performance by the applicant of any practice for which a license under this article is required while the applicant is under suspension for failure to keep the financial responsibility requirements in force.
Sec.i7.iiLICENSE AUTHORIZATION. A license issued under Section 5 or 15 of this article authorizes the adjusting of claims on behalf of insureds for fire and allied coverages, burglary, flood, and all other property claims, both real and personal, including loss of income, but only when the client is an insured under the insurance policy.
Sec.i8.iiEXAMINATION FOR LICENSE; ADVISORY COMMITTEE. (a)iiEach applicant for a license as a public insurance adjuster must, before the issuance of the license, take and pass an examination to the satisfaction of the commissioner.
(b)iiThe examination required by this section must be prescribed by the commissioner and must be of sufficient scope to reasonably test the applicant's:
(1)iiknowledge of basic insurance theory, essential elements of contracts, and claims ethics;
(2)iitechnical competence in the handling of the types of claims for which the applicant is being tested; and
(3)iiknowledge of:
(A)iiArticle 21.21 of this code;
(B)iithe Unauthorized Insurers False Advertising Process Act (Article 21.21-1, Vernon's Texas Insurance Code);
(C)iiArticle 21.21-2 of this code;
(D)iiArticle 21.55 of this code;
(E)iithe Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code);
(F)iianalogous laws as specified by the commissioner;
(G)iistatutory provisions related to the unauthorized practice of law contained in Subchapter G, Chapter 81, Government Code; and
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(H)iithe duties and responsibilities of public insurance adjusters under the law.
(c)iiThe commissioner may appoint a public insurance adjusters examination advisory committee composed of at least five members to assist in developing the examination required by this section. At least three members must be eligible for licensure as public insurance adjusters. At least one member must be a person from the insurance industry who is not a public insurance adjuster, and at least one member must represent consumer interests. A member of the advisory committee is not entitled to compensation for service on the committee. A member is entitled to reimbursement for reasonable and necessary expenses incurred in performing services for the committee, subject to any limitation in the General Appropriations Act.
(d)iiThe commissioner shall, within a reasonable period not to exceed 30 days after the date of the examination, transmit the results of the examination and the action taken on the application to the applicant.
(e)iiAn examination is not required for the renewal of a license issued under Section 5 or 15 of this article.
Sec.i9.iiEXAMINATION; FORM; TIME. (a)iiThe answers of the applicant to an examination required under this article shall be made by the applicant in writing. A written examination may be supplemented by oral examination.
(b)iiThe examination shall be given at such times and places within the state as the commissioner deems necessary to reasonably serve the convenience of both the commissioner and applicants.
(c)iiThe commissioner may require a waiting period of reasonable duration before an applicant who fails the examination, but who is otherwise qualified, may be reexamined.
(d)iiThe scheduling and administration of examinations required under Section 8 of this article shall be effected by persons approved by the commissioner.
Sec.i10.iiFORM OF LICENSE. The commissioner shall prescribe the form of the licenses issued under Section 5 or 15 of this article, which must contain:
(1)iithe name of the public insurance adjuster and the address of the public insurance adjuster's place of business;
(2)iithe date of issuance and the date of expiration of the license; and
(3)iithe name of the firm, if any, with whom the public insurance adjuster is employed at the time the license is issued.
Sec.i11.iiFEE FOR LICENSE, RENEWAL, AND EXAMINATION. (a)iiThe commissioner shall collect in advance the following nonrefundable fees:
(1)iifor a public insurance adjuster license, an application fee in an amount to be determined by rule by the commissioner;
(2)iifor a nonresident public insurance adjuster license, an application fee in an amount to be determined by rule by the commissioner;
(3)iifor each public insurance adjuster examination, a fee in an amount to be determined by rule by the commissioner; and
(4)iifor a public insurance adjuster trainee certificate under Section 16 of this article, a registration fee in an amount to be determined by rule by the commissioner.
(b)iiThe amount of the fee for the renewal of a license or a certificate issued under this article shall be determined by rule by the commissioner.
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Sec.i12.iiUSE OF FEES COLLECTED. (a)iiWhen collected, the fees authorized by this article shall be deposited with the comptroller to the credit of the Texas Department of Insurance operating account.
(b)iiThe department may use any portion of the fees collected to enforce this article, to employ persons as it considers necessary to investigate and make reports regarding alleged violations of this code and misconduct on the part of public insurance adjusters, and to pay the salaries and expenses of persons and office employees and other expenses necessary to enforce this article. A person employed by the department under this section may examine under oath any person for the purpose of gathering information and evidence and may have the information and evidence reduced to writing. All expenses incurred under this section shall be paid from the fees collected under this article.
(c)iiThe commissioner shall set the fees in amounts reasonable and necessary to implement this article.
Sec.i13.iiPLACE OF BUSINESS; AGENT FOR SERVICE OF PROCESS. (a)iiEach licensee who is a resident of this state shall maintain a place of business in this state that is accessible to the general public and maintain in the place of business the records required by this article. The address of the place of business must appear on the face of the license. The licensee shall promptly notify the commissioner of any change in the address of the licensee's place of business.
(b)iiEach nonresident licensee shall maintain an agent in this state for service of process. The name and address of the nonresident licensee's out-of-state business address and the name and address of the agent must appear on the face of the license. The licensee shall promptly notify the department of any change in the address of the licensee's place of business or in the agent for service of process.
(c)iiA license issued under this article must at all times be posted in a conspicuous place in the principal place of business of the licensee.
Sec.i14.iiLICENSE NOT ASSIGNABLE. A license issued under this article is not assignable.
Sec.i15.iiNONRESIDENT LICENSE. (a)iiThe commissioner may issue a nonresident license to an applicant for a public insurance adjuster license who is not a permanent resident of this state on determining that the application meets the requirements of this article, that the nonresident license application fee has been paid, and that the applicant is an individual who:
(1)iiis at least 18 years of age;
(2)iihas passed, to the satisfaction of the commissioner, an examination approved by the commissioner and of sufficient scope as prescribed by Section 8 of this article, provided, however, that the requirement for such an examination does not apply to:
(A)iian applicant who is licensed as a resident public insurance adjuster in the applicant's state of residence, if the state requires the passing of a written examination in order to obtain the license and a reciprocal agreement with the appropriate official of that state has been entered into by the department; or
4118 78th Legislature — Regular Session 82nd Day
(B)iian applicant who is licensed as a nonresident public insurance adjuster in a state other than the applicant's state of residence, if the state of licensure requires the passing of a written examination in order to obtain the license and a reciprocal agreement with the appropriate official of the state of licensure has been entered into by the department;
(3)iiis self-employed as a public insurance adjuster or associated with or employed by a public insurance adjusting firm or other public insurance adjuster;
(4)iiis trustworthy and of a moral character that reasonably ensures that the applicant will conduct the business of a public insurance adjuster fairly and in good faith without detriment to the public;
(5)iihas never been convicted of a felony or, if convicted of a felony, has received a full pardon from that conviction and is otherwise relieved from any disabilities connected with that conviction;
(6)iihas sufficient experience or training relating to the assessment of:
(A)iireal and personal property values; and
(B)iiphysical loss of or damage to real or personal property that may be the subject of insurance and claims under insurance;
(7)iiis sufficiently informed as to the terms and effects of the types of insurance contracts that provide coverage on real and personal property;
(8)iipossesses knowledge and experience adequate to enable the applicant to engage in the business of a public insurance adjuster fairly and without injury to the public or any member of the public with whom the applicant may have business as a public insurance adjuster;
(9)iiif currently licensed as a resident public insurance adjuster in the applicant's state of residence, provides with the application a certificate or letter of authorization from the licensing authority of the applicant's state of residence, stating that the applicant holds a current or comparable license to act as a public insurance adjuster; the certificate or letter must be signed by the appropriate licensing official of the applicant's state of residence and must disclose whether the applicant has ever had any license or eligibility to hold any license declined, denied, suspended, or revoked and whether the applicant has ever been placed on probation and whether an administrative fine or penalty has been levied against the applicant and, if so, the reason for the action;
(10)iiif the applicant's state of residence does not require licensure as a resident public insurance adjuster and the applicant has been licensed as an adjuster, agent, broker, or other insurance representative in the applicant's state of residence or any other state within the past three years, provides with the application a certificate or letter of authorization from the licensing authority stating that the applicant holds or has held a license to act as an adjuster, agent, broker, or other insurance representative; the certificate or letter must be signed by the appropriate licensing official and must disclose whether the applicant has ever had any license or eligibility to hold any license declined, denied, suspended, or revoked and whether the applicant has ever been placed on probation and whether an administrative fine or penalty has been levied against the applicant and, if so, the reason for the action;
(11)iifiles proof of financial responsibility in accordance with Section 6 of this article;
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(12)iipays the application fee required by Section 11 of this article; and
(13)iicomplies with any other requirements under applicable state law, including providing a complete set of fingerprints on request as provided by Article 1.10C of this code.
(b)iiA nonresident licensee shall comply with all of the requirements of this article in performing any of the activities of a public insurance adjuster in this state, including the requirements on record maintenance in Section 24 of this article. The failure of a nonresident licensee, as determined by the commissioner after notice and an opportunity for a hearing, to properly maintain records in accordance with this article and make them available to the department on request constitutes grounds for the suspension of the nonresident license issued under this article, in accordance with Section 30 of this article.
(c)iiEach individual who holds a nonresident license shall comply with all other laws and rules of this state applicable to public insurance adjusters, including the law governing the collection of state sales tax as appropriate for services performed under this article.
(d)iiAfter licensure as a nonresident public insurance adjuster, as a condition of doing business in this state, the licensee must annually, not later than Januaryi1 and on a form prescribed by the commissioner, submit an affidavit certifying that the licensee is familiar with and understands the laws specified in Section 8 of this article, the applicable rules adopted under those laws, and the terms and conditions of the types of insurance contracts that provide coverage on real and personal property. Compliance with the filing requirement provided by this subsection is necessary for the issuance, continuation, reinstatement, or renewal of a nonresident public insurance adjuster license.
(e)iiA nonresident licensee is subject to Section 6(b) of this article, relating to failure to maintain the financial responsibility requirements.
Sec.i16.iiREGISTRATION PROGRAM FOR TRAINEES. (a)iiA public insurance adjuster trainee must register with the department for a temporary certificate under this section. An applicant for a temporary certificate as a trainee must apply to the commissioner on a form prescribed by the commissioner. The form must be accompanied by a nonrefundable registration fee as prescribed by Section 11(a)(4) of this article.
(b)iiA temporary certificate may be issued under this section only for educational and training purposes. The holder of a temporary certificate may practice only under the direction and sponsorship of a licensee of this state.
(c)iiThe sponsor of a public insurance adjuster trainee shall attest, on a form prescribed by the commissioner, that the trainee is under the supervision and control of the sponsor and that the sponsor has met the financial responsibility requirements of Section 6 of this article.
(d)iiA temporary certificate expires on the 180th day after the date of issuance and may be renewed once on application to the commissioner. An individual is not entitled to hold more than two consecutive temporary certificates.
(e)iiEach individual who holds a temporary certificate under this section must comply with the financial responsibility requirements imposed under Section 6 of this article.
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Sec.i17.iiCONDUCT TO COMPLY WITH CONTRACT. A licensee shall prepare each claim for an insured represented by the licensee in accordance with the terms and conditions of the contract of insurance under which recovery is sought.
Sec.i18.iiCODE OF ETHICS. The commissioner, with guidance from the public insurance adjusters examination advisory committee, by rule shall adopt:
(1)iia code of ethics for public insurance adjusters that fosters the education of public insurance adjusters concerning the ethical, legal, and business principles that should govern their conduct;
(2)iirecommendations regarding the solicitation of the adjustment of losses by public insurance adjusters; and
(3)iiany other principles of conduct or procedures that the commissioner deems necessary and reasonable.
Sec.i19.iiPUBLIC INSURANCE ADJUSTER AUTHORITY. This article does not limit or diminish the authority of a licensee to investigate or adjust a loss to less than the authority for that purpose that may be exercised by an adjuster licensed under Chapter 407, Acts of the 63rd Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's Texas Insurance Code).
Sec.i20.iiLICENSE RENEWAL. (a)iiA license issued under this article expires on the second anniversary of the date of issuance unless suspended or revoked by the commissioner. A licensee may renew a license that has not expired and has not been suspended or revoked by filing with the department a properly completed renewal application, in the form prescribed by the commissioner, that demonstrates continued compliance with the license requirements imposed under this article or adopted by rule by the commissioner. The completed renewal application must be accompanied by:
(1)iia renewal fee in the amount determined by the commissioner under Section 11(b) of this article; and
(2)iievidence of compliance with the continuing education requirements imposed under Section 21 of this article.
(b)iiA licensee must submit the completed renewal application, evidence of compliance with the continuing education requirements, and the renewal fee to the commissioner not later than the 30th day before the second anniversary date of the license. The original license continues in force until:
(1)iithe department issues the renewal license; or
(2)iithe commissioner issues an order revoking the license.
(c)iiA person whose license has been expired for 90 days or less may renew the license by filing a completed renewal application in the form prescribed by the commissioner and evidence of compliance with the continuing education requirements and by paying to the department the required renewal fee and an additional fee that is equal to one-half of the renewal fee for the license.
(d)iiA person whose license has been expired for more than 90 days but less than one year may not renew the license but is entitled to a new license without taking the applicable examination if the person submits to the department a new application, evidence of compliance with the continuing education requirements, the license fee, and an additional fee equal to one-half of the license fee.
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(e)iiA person whose license has been expired for one year or more may not renew the license. The person may obtain a new license by submitting to reexamination, if examination is required for original issuance of the license, and by complying with the requirements and procedures for obtaining an original license.
(f)iiThe department may renew without reexamination an expired license of a person who was licensed in this state, moved to another state, and is currently licensed and has been in continual practice in the other state up to and including the date of the application. The person must pay to the department a fee that is equal to the license fee.
(g)iiAt least 30 days before the expiration of a license, the department shall send written notice of the impending license expiration to the licensee at the licensee's last known mailing address according to the records of the department.
Sec.i21.iiCONTINUING EDUCATION REQUIREMENT. (a)iiEach licensee must annually complete at least 15 hours of continuing education courses. The commissioner by rule shall prescribe the requirements for continuing education courses under this section.
(b)iiNotwithstanding Subsection (a) of this section, the commissioner may waive any continuing education requirement for a nonresident public insurance adjuster with a valid license from another state having continuing education requirements substantially equivalent to those of this state.
Sec.i22.iiCOMMISSION. (a)iiExcept as provided by Subsection (b) of this section, a licensee may receive a commission for service provided under this article consisting of an hourly fee, a flat rate, a percentage of the total amount paid by an insurer to resolve a claim, or another method of compensation. The total commission received may not exceed 10 percent of the amount of the insurance settlement on the claim.
(b)iiA licensee may not receive a commission consisting of a percentage of the total amount paid by an insurer to resolve a claim on a claim on which the insurer, not later than 72 hours after the date on which the loss is reported to the insurer, either pays or commits in writing to pay to the insured the policy limit of the insurance policy in accordance with Article 6.13 or Section 862.053 of this code. The licensee is entitled to reasonable compensation from the insured for services provided by the licensee on behalf of the insured, based on the time spent on a claim that is subject to this subsection and expenses incurred by the licensee, until the claim is paid or the insured receives a written commitment to pay from the insurer.
(c)iiExcept for the payment of a commission by the insured, all persons paying any proceeds of a policy of insurance or making any payment affecting an insured's rights under a policy of insurance must:
(1)iiinclude the insured as a payee on the payment draft or check; and
(2)iirequire the written signature and endorsement of the insured on the payment draft or check.
(d)iiA public insurance adjuster may not accept any payment that violates Subsection (c) of this section.
(e)iiNotwithstanding any authorization the insured may have given to a public insurance adjuster, a public insurance adjuster may not sign and endorse any payment draft or check on behalf of an insured.
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Sec.i23.iiPROHIBITED CONDUCT. (a)iiA licensee may not, directly or indirectly, act within this state as a public insurance adjuster without having first entered into a contract, in writing, on a form approved by the commissioner, executed in duplicate by the licensee and the insured or the insured's duly authorized representative. One copy of the contract shall be kept on file in this state by the licensee and must be available at all times for inspection, without notice, by the commissioner or the commissioner's duly authorized representative.
(b)iiA licensee may not solicit or attempt to solicit a client for employment during the progress of a loss-producing natural disaster occurrence.
(c)iiA licensee may not solicit or attempt to solicit business on a loss or a claim in person, by telephone, or in any other manner at any time except between the hours of 9 a.m. and 9 p.m. on a weekday or a Saturday and between noon and 9 p.m. on a Sunday. This subsection does not prohibit a licensee from accepting phone calls or personal visits during the prohibited hours from an insured upon the insured's initiation.
(d)iiA licensee may not use any form of contract that is not approved by the commissioner. The contract must contain a provision allowing the client to rescind the contract by written notice to the licensee within 72 hours of signature and must include a notice in 12-point boldface type, prominently displayed, the statement: "WE REPRESENT THE INSURED ONLY." The commissioner by rule may require additional prominently displayed notice requirements in the contract as the commissioner deems necessary.
(e)iiA licensee may not knowingly make any false report to the licensee's employer or client and may not divulge to any other person, except as the law may require, any information obtained except at the direction of the employer or the client for whom the information is obtained.
(f)iiA licensee may not use a badge in connection with the official activities of the licensee's business.
(g)iiA licensee may not permit an employee or agent, in the employee's or agent's own name, to advertise, solicit or engage clients, furnish reports or present bills to clients, or in any manner conduct business for which a license is required under this article.
(h)iiA licensee may not render services or perform acts that constitute the practice of law, including the giving of legal advice to any person in the licensee's capacity as a public insurance adjuster.
(i)iiA licensee may not represent an insured on a claim or charge a fee to an insured while representing the insurance carrier against which the claim is made.
(j)iiA licensee may not solicit or attempt to solicit business, directly or indirectly, or act in any manner on a bodily injury loss covered by a life, health, or accident insurance policy or on any claim for which the client is not an insured under the insurance policy.
(k)iiA licensee may not, without the knowledge and consent of the insured in writing, acquire an interest in salvaged property that is the subject of a claim adjusted by the licensee.
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(l)iiA licensee may not participate directly or indirectly in the reconstruction, repair, or restoration of damaged property that is the subject of a claim adjusted by the licensee or engage in any other activities that may reasonably be construed as presenting a conflict of interest, including soliciting or accepting any remuneration from, or having a financial interest in, any salvage firm, repair firm, or other firm that obtains business in connection with any claim the licensee has a contract or agreement to adjust.
(m)iiA licensee may not:
(1)iiuse any misrepresentation to solicit a contract or agreement to adjust a claim;
(2)iiadvance money to any potential client or insured;
(3)iipay, allow, or give, or offer to pay, allow, or give, directly or indirectly, to a person who is not a licensed public insurance adjuster a fee, commission, or other valuable consideration for the referral of an insured to the public insurance adjuster based on the insured entering into a contract with that public insurance adjuster; a licensee may not otherwise offer to pay a fee, commission, or other valuable consideration exceeding $100 to a person not licensed as a public insurance adjuster for referring an insured to the licensee;
(4)iiuse any letterhead, advertisement, or other printed matter, or use any other means, to represent that the licensee is an instrumentality of the federal government, of a state, or of a political subdivision of a state; or
(5)iiuse a name different from that under which the licensee is currently licensed in an advertisement, solicitation, or contract for business.
Sec.i24.iiRECORD MAINTENANCE. (a)iiA licensee shall keep a complete record in this state of each of the licensee's transactions as a public insurance adjuster. The records shall include all of the following:
(1)iithe name of the insured;
(2)iithe date, location, and amount of the loss;
(3)iia copy of the contract between the licensee and the insured;
(4)iithe name of the insurer and the amount, expiration date, and number of each policy under which the loss is covered;
(5)iian itemized statement of the recoveries by the insured from the sources known to the licensee;
(6)iithe total compensation received for the adjustment; and
(7)iian itemized statement of disbursements made by the licensee from recoveries received on behalf of the insured.
(b)iiRecords required to be kept under this section shall be maintained in this state for at least five years after the termination of a transaction with the insured and must be open to examination by the commissioner.
Sec.i25.iiFIDUCIARY CAPACITY. (a)iiAll funds received as claim proceeds by a licensee acting as a public insurance adjuster are received and held by the licensee in a fiduciary capacity. A licensee who diverts or appropriates any fiduciary funds for the licensee's personal use is guilty of theft and is punishable for theft as provided by law.
4124 78th Legislature — Regular Session 82nd Day
(b)iiAn applicant for a license to act as a public insurance adjuster must, as part of the application, endorse an authorization for disclosure to the commissioner of all financial records of any funds the public insurance adjuster holds as a fiduciary. The authorization shall continue in force and effect for as long as the licensee continues to be licensed under this article.
Sec.i26.iiNOTICE TO LAST ADDRESS. Notice by registered mail, return receipt requested, sent to the last known address of an applicant for a license, licensee, or other person to whom notice is required to be sent under this article, as reflected by the records of the department, constitutes sufficient notice under this article.
Sec.i27.iiRELOCATION TO ANOTHER STATE. (a)iiNot later than the 30th day after moving from one state to another state, a nonresident or resident public insurance adjuster licensed in this state shall file with the department:
(1)iithe licensee's new address; and
(2)iiproof of authorization to engage in the business of public insurance adjuster in the new state of residence if that state requires licensure of public insurance adjusters.
(b)iiThe department may not charge a fee or require a license application under Subsection (a) of this section.
Sec.i28.iiADVERTISEMENTS. Every advertisement by a licensee soliciting or advertising business must display the licensee's name, address, and license number as they appear in the records of the commissioner.
Sec.i29.iiRULES. The commissioner may adopt reasonable and necessary rules to implement this article, including rules regarding the:
(1)iiqualifications of licensees, in addition to those prescribed by this article, that are necessary to promote and protect the public interest;
(2)iiregulation of the conduct of licensees;
(3)iiprescription of fees required by Section 11 of this article; and
(4)iiadvertisements under Section 28 of this article and the definition of "advertisement" as the term is used in that section.
Sec.i30.iiDENIAL, SUSPENSION, OR REVOCATION OF LICENSE. (a)iiThe commissioner may deny an application for a license under this article or suspend or revoke a license issued under this article on the basis of:
(1)iia violation of this article or of any rule adopted by the commissioner under this article;
(2)iia cause that constitutes grounds for denial of an original license;
(3)iiwilful misrepresentation or fraud in obtaining a license;
(4)iifailure to pass a required license examination;
(5)iithe misappropriation or conversion of money required to be held in a fiduciary capacity;
(6)iimaterial misrepresentation, with intent to deceive, of the terms of an insurance contract;
(7)iiengaging in a fraudulent transaction;
(8)iidemonstrated incompetence or untrustworthiness in the conduct of the licensee's affairs under the license, as determined by the commissioner;
(9)iiconviction of a felony by a final judgment in a court of competent jurisdiction; or
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(10)iimaterial misrepresentation, with intent to deceive, of the person's status as a public insurance adjuster.
(b)iiIf the department proposes to refuse to issue an original license under this article or to suspend, revoke, or refuse to renew a license under this article, the person affected is entitled to notice and hearing as provided by Section 3A(b), Article 21.01-2 of this code.
(c)iiA final order entered as a result of a hearing under this section may be appealed to a court of competent jurisdiction as provided by Subchapter D, Chapter 36, of this code.
(d)iiAn order suspending a license issued under this article must specify the period of the suspension not to exceed 12 months.
(e)iiThe holder of a license that is revoked or suspended for cause shall surrender the license to the commissioner on demand.
(f)iiThe commissioner may issue a license or reinstate a suspended or revoked license on a finding that the cause for suspension, revocation, or refusal no longer exists.
(g)iiA person whose license is suspended under this article may apply for a new license only after the expiration of the period of suspension. A person whose license is revoked or whose application for a license is denied, except for a failure to submit a completed application, may not apply for a new license until the fifth anniversary of:
(1)iithe effective date of the denial or revocation; or
(2)iiif the applicant or licensee seeks judicial review of the department's action, the date of the final court order or decree affirming that action.
(h)iiThe commissioner may deny a timely application filed under Subsection (g) of this section if the applicant does not show good cause why the denial of the previous license application or the revocation of the license should not be considered a bar to the issuance of the new license. This subsection does not apply to an applicant whose license application was denied for failure to:
(1)iipass the required written examination; or
(2)iisubmit a properly completed license application.
(i)iiThe commissioner, in lieu of suspending or revoking a license for a violation of this article or a rule adopted under this article, may impose on a licensee an administrative penalty in an amount not to exceed $2,000 per violation if the commissioner determines that such action better serves the purposes of this article.
(j)iiThe department may institute a disciplinary proceeding against a licensee for conduct that the licensee committed before the effective date of a voluntary surrender or automatic forfeiture of the license. In the proceeding, the fact that the licensee has surrendered or forfeited the license does not affect the licensee's culpability for the conduct.
Sec.i31.iiAUTOMATIC FINES. Section 5A, Article 21.01-2, of this code applies to violations of this article.
Sec.i32.iiCRIMINAL PENALTY; SANCTIONS. (a)iiA person commits an offense if the person violates this article. Except as provided by Section 25(a) of this article, an offense under this subsection is a Class B misdemeanor.
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(b)iiIn addition to the criminal penalties imposed under Subsection (a) of this section, a person in violation of this article is subject to the sanctions provided by Section 7, Article 21.21, of this code as if the person had violated an order under that section.
SECTIONi3.03.iiSection 3, Article 21.01, Insurance Code, is amended to read as follows:
Sec.i3.iiAPPLICATION. Except as otherwise provided by this code, this subchapter applies to each person licensed in accordance with:
(1)iiSection 4, Article 1.14-2, of this code;
(2)iiSection 7, Article 3.75, of this code;
(3)iiSubsection (c), Article 5.13-1, of this code;
(4)iiArticle 10.37-3 of this code;
(5)iiArticle 16.24A of this code;
(6)iiSection 9, Article 17.25, of this code;
(7)iiArticle 21.07 of this code;
(8)iiArticle 21.07-1 of this code;
(9)iiChapter 29, Acts of the 54th Legislature, Regular Session, 1955 (Article 21.07-2, Vernon's Texas Insurance Code);
(10)iithe Managing General Agents' Licensing Act (Article 21.07-3, Vernon's Texas Insurance Code);
(11)iiChapter 407, Acts of the 63rd Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's Texas Insurance Code);
(12)iiArticle 21.07-5 of this code;
(13)iiArticle 21.07-6 of this code;
(14)i[(13)]iiArticle 21.07-7 of this code;
(15)i[(14)]iiArticle 21.09 of this code;
(16)i[(15)]iiArticle 21.11 of this code;
(17)i[(16)]iiArticle 21.14 of this code;
(18)i[(17)]iiArticle 21.14-1 of this code;
(19)i[(18)]iiArticle 21.14-2 of this code; or
(20)i[(19)]iiArticle 23.23A of this code.
SECTIONi3.04.ii(a)iiIf the commissioner of insurance elects to appoint a public insurance adjusters examination advisory committee under Subsection (c), Section 8, Article 21.07-5, Insurance Code, as added by this article, the commissioner shall appoint the members of the committee not later than the 60th day after the effective date of this Act. If, on the effective date of this Act, the commissioner has a contract with a testing service for the examination of adjuster applicants under Article 21.07-5, Insurance Code, as added by this article, the commissioner may add the public insurance adjusters examination to the scope of that contract, without seeking additional bids, at a fee not greater than the highest adjuster examination fee charged.
(b)iiThe commissioner of insurance shall adopt the examination required by Section 8, Article 21.07-5, Insurance Code, as added by this article, not later than Januaryi1, 2004. Pending the adoption of the examination, the commissioner may issue a temporary license to practice as a public insurance adjuster to an individual
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(c)iiThe commissioner of insurance shall adopt the code of ethics prescribed under Section 18, Article 21.07-5, Insurance Code, as added by this article, not later than Septemberi1, 2004.
(d)iiSubject to the provisions of Subsections (a), (b), and (c) of this section, the commissioner of insurance shall adopt rules as necessary to implement Article 21.07-5, Insurance Code, as added by this article, not later than Januaryi1, 2004.
ARTICLEi4.iiEFFECTIVE DATE
SECTIONi4.01.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.
Floor Amendment No. 1
Amend CSSBi127 (House committee printing) as follows:
(1)iiIn SECTION 3.02 of the bill, in added Subdivision (1), Section 1, Article 21.07-5, Insurance Code (page 7, line 4), strike "an individual" and substitute "a person".
(2)iiIn SECTION 3.02 of the bill, in added Subparagraph (i), Paragraph (A), Subdivision (3), Section 1, Article 21.07-5, Insurance Code (page 7, line 10), strike "an individual who, for compensation" and substitute "a person who, for direct, indirect, or any other compensation".
(3)iiIn SECTION 3.02 of the bill, in added Subparagraph (ii), Paragraph (A), Subdivision (3), Section 1, Article 21.07-5, Insurance Code (page 7, line 19), strike "an individual" and substitute "a person".
(4)iiIn SECTION 3.02 of the bill, in added Subparagraph (vi), Paragraph (B), Subdivision (3), Section 1, Article 21.07-5, Insurance Code (page 8, line 17), strike "or".
(5)iiIn SECTION 3.02 of the bill, in added Subparagraph (vii), Paragraph (B), Subdivision (3), Section 1, Article 21.07-5, Insurance Code (page 8, line 20), strike the period and substitute "; or".
(6)iiIn SECTION 3.02 of the bill, in added Paragraph (B), Subdivision (3), Section 1, Article 21.07-5, Insurance Code, following Subparagraph (vii) (page 8, between lines 20 and 21), insert the following:
(viii)iia full-time salaried employee of a property owner or a property management company retained by a property owner who:
(a)iidoes not hold the employee out as a public insurance adjuster or a building, roofing, or other restoration contractor;
(b)iihas not been hired for the purpose of handling a specific claim resulting from a fire or casualty loss; and
(c)iiacts at the sole discretion of the property owner or management company regarding a claim related to the owner's property.
(7)iiIn SECTION 3.02 of the bill, in added Article 21.07-5, Insurance Code, following added Section 5 (page 11, between lines 22 and 23), insert the following:
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Sec.i5A.iiISSUANCE OF LICENSE TO BUSINESS ENTITY. (a) The department shall adopt rules necessary to issue a public insurance adjuster license to a business entity organized under the laws of this state.
(b)iiRules adopted by the department under Subsection (a) must:
(1)iibe analogous to rules adopted by the department under Section 2, Article 21.07 of this code; and
(2)iicontain qualifications for the issuance of a public insurance adjuster license analogous to the qualifications described by Section 5 of this article.
(c)iiThe department may not issue a public insurance adjuster license to a business entity described by Subsection (a) unless at least one officer, active partner, or other managing individual of the business entity and each individual performing acts of a public insurance adjuster on behalf of the business entity in this state are individually licensed by the department separately from the business entity by the department under Section 5 of this article.
(8)iiIn SECTION 3.02 of the bill, in added Section 7, Article 21.07-5, Insurance Code (page 13, line 10), strike "5 or 15" and substitute "5, 5A, 15, or 15A".
(9)iiIn SECTION 3.02 of the bill, in added Subsection (e), Section 8, Article 21.07-5, Insurance Code (page 15, line 5), strike "5 or 15" and substitute "5, 5A, 15, or 15A".
(10)iiIn SECTION 3.02 of the bill, in added Subsection (a), Section 9, Article 21.07-5, Insurance Code (page 15, lines 6 and 7), strike "the applicant" in the first place the phrase appears in the subsection and substitute "an examinee".
(11)iiIn SECTION 3.02 of the bill, in added Subsection (a), Section 9, Article 21.07-5, Insurance Code (page 15, line 8), strike "applicant" in the second place the word appears in the subsection and substitute "examinee".
(12)iiIn SECTION 3.02 of the bill, in added Subsection (b), Section 9, Article 21.07-5, Insurance Code (page 15, line 12), strike "applicants" and substitute "examinees".
(13)iiIn SECTION 3.02 of the bill, in added Subsection (c), Section 9, Article 21.07-5, Insurance Code (page 15, line 14), strike "applicant" and substitute "examinee".
(14)iiIn SECTION 3.02 of the bill, in added Section 10, Article 21.07-5, Insurance Code (page 15, line 20), strike "5 or 15" and substitute "5, 5A, 15, or 15A".
(15)iiIn SECTION 3.02 of the bill, in added Subdivision (3), Section 10, Article 21.07-5, Insurance Code (page 15, line 26), strike "the name of the firm, if any," and substitute "if applicable, the name of the firm".
(16)iiIn SECTION 3.02 of the bill, in added Subsection (a), Section 13, Article 21.07-5, Insurance Code, between "state" and "shall" (page 17, line 9), insert "or a business entity organized under the laws of this state".
(17)iiIn SECTION 3.02 of the bill, in added Article 21.07-5, Insurance Code, following added Section 15 (page 22, between lines 4 and 5), insert the following:
Sec.i15A.iiLICENSE FOR NONRESIDENT BUSINESS ENTITY. (a) The department shall adopt rules necessary to issue a public insurance adjuster license to a business entity organized under the laws of another state or the United States.
(b)iiRules adopted by the department under Subsection (a) must:
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(1)iibe analogous to rules adopted by the department under Section 2, Article 21.07 of this code; and
(2)iicontain:
(A)iiqualifications for the issuance of a public insurance adjuster license analogous to the qualifications described by Section 15 of this article; and
(B)iirequirements for the performance of the duties and powers of a public insurance adjuster analogous to the requirements described by Section 15 of this article.
(c)iiThe department may not issue a public insurance adjuster license to a business entity described by Subsection (a) unless at least one officer, active partner, or other managing individual of the business entity and each individual performing acts of a public insurance adjuster on behalf of the business entity in this state are individually licensed by the department separately from the business entity under Section 15 of this article.
(18)iiIn SECTION 3.02 of the bill, in added Subsection (b), Section 20, Article 21.07-5, Insurance Code (page 24, line 12), strike "The" and substitute "On the filing of a completed renewal application, renewal fee, and, if applicable, evidence of compliance with the continuing education requirements, the".
(19)iiIn SECTION 3.02 of the bill, in added Subsection (a), Section 25, Article 21.07-5, Insurance Code (page 31, lines 2 through 5), strike the final sentence of the subsection, and substitute "A licensee may not divert or appropriate fiduciary funds received or held."
(20)iiIn SECTION 3.02 of the bill, in added Subdivision (3), Subsection (a), Section 30, Article 21.07-5, Insurance Code (page 32, line 25), strike "wilful".
(21)iiIn SECTION 3.02 of the bill, in added Subsection (a), Section 32, Article 21.07-5, Insurance Code (page 35, lines 7 and 8), strike "Except as provided by Section 25(a) of this article, an" and substitute "An".
(22)iiIn SECTION 3.02 of the bill, in added Section 32, Article 21.07-5, Insurance Code, following added Subsection (a) (page 35, between lines 9 and 10), insert the following new subsection and renumber subsequent subsections accordingly:
(b)iiIf conduct that constitutes an offense under Subsection (a) also constitutes an offense under any other law, the person committing the offense may be prosecuted under this section or the other law.
Floor Amendment No. 2
Amend CSSB 127 as follows:
In Section 3, page 2 line 23 after "commissioner." add subsection (c) An insurer may not make an underwriting decision regarding a residential property insurance policy based on previous mold or water damage, including appliances, if:
(1) the applicant for insurance has made a previous claim under any residential property policy for damage caused by mold or water damage if the claim does not arise out of the negligence of the insured.
(2) mold remediation has been performed on the property that is the subject of the claim; and
(3) the property was:
4130 78th Legislature — Regular Session 82nd Day
(A) remediated, as evidenced by a certificate of mold remediation issued to the property owner under Section 1958.153, Occupations Code, that establishes that the underlying cause of the mold at the property has been remediated; or
(B) inspected by an independent assessor or adjustor who determined, based on the inspection, that the property does not contain evidence of mold damage.
Floor Amendment No. 3
Amend Floor Amendment No. 2 by Taylor to CSSBi127, in added Subsection (c)(1) (page 1, lines 8-9), by striking "if the claim does not arise out of the negligence of the insured." and substituting ";".
Floor Amendment No. 4
Amend CSSBi127 (House committee printing) as follows:
(1)iiIn SECTION 1.01 of the bill, in the heading to added Article 5.35-4, Insurance Code (page 1, line 9), strike "; PERMISSIBLE SURCHARGES".
(2)iiIn SECTION 1.01 of the bill, following added Section 3(b), Article 5.35-4, Insurance Code (page 2, between lines 23 and 24), add the following new subsections:
(c)iiAn insurer may not use a prior water damage claim filed by a person as a basis for determining the rate to be paid by the person for insurance coverage or for determining whether to issue, renew, or cancel an insurance policy to or for the person if the person:
(1)iiproperly remediated the prior water damage; and
(2)iihad the remediation inspected and certified by a person or entity knowledgeable and experienced in the remediation of water damage.
(d)iiAn insurer may not use a prior water damage claim filed regarding specific property as a basis for determining the rate to be paid by a person for insurance coverage for that property or for determining whether to issue, renew, or cancel an insurance policy to or for a person seeking insurance coverage for that property if the prior water damage was properly remediated and was inspected and certified by a person knowledgeable and experienced in remediation of water damage.
(e)iiAn insurer may require the inspection and certification of a remediation described by Subsection (c) or (d) of this section to be conducted by a person or entity approved by the insurer to inspect and certify the remediation of water damage. An insurer requiring the inspection and certification of a remediation described by Subsection (c) or (d) of this section to be conducted by a person or entity approved by the insurer must ensure that sufficient approved persons or entities are available to conduct necessary inspections and certifications in this state. A person or entity approved by an insurer may charge the applicant for coverage or policyholder a fee, not to exceed $75, for the required inspection and certification of the remediation. The insurer shall pay any additional amount charged by the approved person or entity in connection with the inspection and certification.
(3)iiIn SECTION 1.01 of the bill, strike added Section 4, Article 5.35-4, Insurance Code (page 2, line 24, through page 4, line 3).
(4)iiIn SECTION 1.01 of the bill, in added Section 5, Article 5.35-4, Insurance Code (page 4, line 4), strike "Sec. 5" and substitute "Sec. 4".
Friday, May 30, 2003 SENATE JOURNAL 4131
Floor Amendment No. 6
Amend CSSB 127 on page 4, after line 6, by adding a new Section 6 to added Article 5.35-4, Insurance Code, to read as follows:
Sec. 6. OPTIONAL PREMIUM DISCOUNT. (a) An insurer that issues a residential property insurance policy in this state may provide a discount in the premiums that would otherwise be charged for the policy if the policyholder has installed a water leak detection system that meets the building and performance standards for mold reduction in Section 430.002, Property Code.
(b) The commissioner shall establish by rule the amount of a premium discount applicable under this section based on sound actuarial principles.
Floor Amendment No. 1 on Third Reading
Amend CSSB 127 on third reading as follows:
(1) In Section 5A(b)(1), Article 21.07-5, Insurance Code, as added by item (7) of Amendment No. 1 by Seaman, strike "rules adopted by the department under" and substitute "the provisions of".
(2) In Section 15A(b)(1), Article 21.07-5, Insurance Code, as added by item (17) of Amendment No. 1 by Seaman, strike rules adopted by the department under" and substitute "the provisions of".
Floor Amendment No. 2 on Third Reading
Amend CSSB 127, on third reading, in added Subsection (c), Section 23, Article 21.07-5, Insurance Code, following the last sentence of the subsection, by inserting:
A licensee shall comply with Chapter 43, Business & Commerce Code, as added by Chapter 1429, Acts of the 77th Legislature, Regular Session, 2001, when soliciting or attempting to solicit business.
The amendments were read.
Senator Armbrister, on behalf of Senator Fraser, moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 127 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Fraser, Chair; Jackson, Armbrister, Averitt, and VanideiPutte.
CONFERENCE COMMITTEE ON HOUSE BILL 2075
Senator Armbrister, on behalf of Senator Fraser, called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi2075 and moved that the request be granted.
The motion prevailed without objection.
4132 78th Legislature — Regular Session 82nd Day
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi2075 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Fraser, Chair; Deuell, Lindsay, Madla, and Lucio.
CONFERENCE COMMITTEE ON HOUSE BILL 1119
Senator Armbrister, on behalf of Senator Brimer, called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1119 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1119 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Brimer, Chair; Armbrister, Averitt, Deuell, and Janek.
CONFERENCE COMMITTEE ON HOUSE BILL 1865
Senator Williams called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1865 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1865 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Williams, Chair; Staples, Armbrister, Fraser, and Ellis.
SENATE BILL 1054 WITH HOUSE AMENDMENT
Senator Shapleigh called SBi1054 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Floor Amendment No. 1
Amend SB 1054 (House committee report) as follows:
(1) In SECTION 6 of the bill (page 4, line 3), strike "The" and substitute "Except as provided by Section ____ of this Act, the".
(2) Add the following appropriately numbered SECTIONS to the bill and renumber existing SECTIONS of the bill accordingly:
Friday, May 30, 2003 SENATE JOURNAL 4133
SECTION ____. Subsection (a), Section 13B, Article 42.12, Code of Criminal Procedure, is amended to read as follows:
(a) If a judge grants community supervision to a defendant described by Subsection (b) and the judge determines that a child as defined by Section 22.011(c), Penal Code, was the victim of the offense, the judge shall establish a child safety zone applicable to the defendant by requiring as a condition of community supervision that the defendant:
(1) not:
(A) supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provides athletic, civic, or cultural activities; or
(B) go in, on, or within 1,000 feet [a distance specified by the judge] of
a premises where children commonly gather, including a school, day-care facility,
playground, public or private youth center, public swimming pool, or video arcade
facility; and
(2) attend psychological counseling sessions for sex offenders with an individual or organization which provides sex offender treatment or counseling as specified by or approved by the judge or the community supervision and corrections department officer supervising the defendant.
SECTION ____. Section 13B, Article 42.12, Code of Criminal Procedure, is amended by adding Subsection (i) to read as follows:
(i) Notwithstanding Subsection (a)(1)(B), a requirement that a defendant not go in, on, or within 1,000 feet of certain premises does not apply to a defendant while the defendant is in or going immediately to or from a:
(1) community supervision and corrections department office;
(2) premises at which the defendant is participating in a program or activity required as a condition of community supervision;
(3) residential facility in which the defendant is required to reside as a condition of community supervision, if the facility was in operation as a residence for defendants on community supervision on June 1, 2003; or
(4) private residence at which the defendant is required to reside as a condition of community supervision.
SECTION ____. (a) Except as provided by Subsection (b) of this section, the change in law made by this Act in amending Section 13B, Article 42.12, Code of Criminal Procedure, applies only to a person placed on community supervision on or after the effective date of this Act.
(b) On or after the effective date of this Act, a court may modify a condition of community supervision to require that a person who before that date was placed on community supervision maintain a distance of 1,000 feet from a premises where children commonly gather.
The amendment was read.
Senator Shapleigh moved to concur in the House amendment to SBi1054.
The motion prevailed by a viva voce vote.
4134 78th Legislature — Regular Session 82nd Day
SENATE BILL 1463 WITH HOUSE AMENDMENT
Senator Lindsay called SBi1463 from the President's table for consideration of the House amendment to the bill.
The Presiding Officer laid the bill and the House amendment before the Senate.
Committee Amendment No. 1
Amend SB 1463 as follows:
On page 1, line 7, between "COUNTY" and "." insert the following: "OR TOLL ROAD AUTHORITY"
On page 1, lines 8 through 11, delete the current subsection (a) and substitute the following new subsection (a) to read as follows:
(a) The commission may convey a nontoll state highway or a segment of a nontoll state highway, including real property acquired to construct or operate the highway to:
(A) a county or a toll road authority in the county in which the state highway or segment is located; or
(B) a county or toll road authority in a county adjacent to the county in which the highway or a segment is located if the county or toll road authority in the county in which the segment or highway is located approves the conveyance;
for operation and maintenance as a project under this chapter if:
On page 1, line 19 between "county" and "agrees" insert the following: "or toll road authority"
On page 1, line 20 between "county" and "that" insert the following: "or toll road authority"
On page 2, line 19 between "county" and "may" insert the following: "or toll road authority"
On page 2, line 19 between "county" and "or" insert the following: ", toll road authority"
On page 2, lines 19 and 20 between "county" and "determines" insert: "or toll road authority"
On page 3, line 6 between "county" and "or" insert the following: ", toll road authority"
On page 3, line 19 between "county" and "; and" insert the following: "or area served by the toll road authority"
On page 3, line 9 between "county" and "determines" insert the following: "or toll road authority"
On page 3, line 10 between "county" and "." insert the following: "or area served by the toll road authority"
On page 3, line 13 between "loop" and "located" insert the following: "or connecting to an outer loop"
On page 3, line 19 between "million" and "." insert the following: "or an adjacent county"
The amendment was read.
Senator Lindsay moved to concur in the House amendment to SBi1463.
The motion prevailed by the following vote:iiYeasi31, Naysi0.
Friday, May 30, 2003 SENATE JOURNAL 4135
SENATE BILL 1904 WITH HOUSE AMENDMENT
Senator Barrientos called SBi1904 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 1904 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to driver's licenses, the operation of certain motor vehicles, including commercial motor vehicles, in this state, and to the disposition of certain Class C misdemeanors.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubsection (f), Section 472.022, Transportation Code, is amended to read as follows:
(f)iiArticles 45.051 and 45.0511 [Article 45.54], Code of Criminal Procedure, do
[does] not apply to an offense under this section committed in a construction or
maintenance work zone when workers are present.
SECTIONi2.iiSubchapter C, Chapter 521, Transportation Code, is amended by adding Section 521.0475 to read as follows:
Sec.i521.0475.iiDISCLOSURE OF ABSTRACT RECORD. (a) Except as provided by Subsection (b) or (c), the department shall provide a certified abstract of a complete driving record of a license holder, for a fee of $20, to the license holder or a person eligible to receive the information under Sections 730.007(a)(2)(A), (D), and (I).
(b)iiIf an abstract of a complete driving record does not exist for a license holder, the department shall provide a person making a request under Subsection (a) a certified statement to that effect.
(c)iiIf the department provides information under Subsection (a) or (b) through the system described by Section 521.055, the information may not be marked as certified.
SECTIONi3.iiSection 521.052, Transportation Code, is amended to read as follows:
Sec.i521.052.iiDISCLOSURE OF INDIVIDUAL INFORMATION
PROHIBITED. Except as provided by Sections 521.045, 521.046, 521.0475,
521.049(c), and 521.050[, and 601.022], and by Chapter 730, the department may not
disclose information from the department's files that relates to personal information,
as that term is defined by Section 730.003.
SECTIONi4.iiSection 521.053, Transportation Code, is amended by amending Subsection (a) and adding Subsections (c) and (d) to read as follows:
(a)iiThe department may provide to any person the information specified by
Section 521.045, 521.046, 521.0475, or 521.047 [and by Section 601.022], for the fee
required by those sections, that relate to the holder of or applicant for a commercial
driver's license under Chapter 522 if the person is eligible to receive the information
under Chapter 730.
4136 78th Legislature — Regular Session 82nd Day
(c)iiThe department may provide information under Subsection (a) through the system described by Section 521.055.
(d)iiThe department may provide information maintained under Section 643.064 that relates to a holder of a commercial driver's license under Chapter 522 to the holder, the holder's current employer, or a person acting on behalf of the employer if the department receives the holder's specific written consent to the release of information.
SECTIONi5.iiSubsections (b) and (c), Section 521.055, Transportation Code, are amended to read as follows:
(b)iiThe system may provide for the release of driving records described in [the
following information]:
(1)ii[the status check described in] Section 521.045; [and]
(2)ii[the three-year driving record under] Section 521.046;
(3)iiSection 521.047; and
(4)iiSection 521.0475.
(c)iiThe fee for a driving record [status check] under Subsection (b)(1) is $2.50.
The fee for a [three-year] driving record under Subsection (b)(2) is $4.50. The fee for
a driving record under Subsection (b)(3) is $5.50. The fee for a driving record under
Subsection (b)(4) is $20.
SECTIONi6.iiSubdivision (25), Section 522.003, Transportation Code, is amended to read as follows:
(25)ii"Serious traffic violation" means:
(A)iia conviction arising from the driving of a [commercial] motor
vehicle, other than a parking, vehicle weight, or vehicle defect violation, for:
(i)i[(A)]iiexcessive speeding, involving a single charge of driving
15 miles per hour or more above the posted speed limit;
(ii)i[(B)]iireckless driving, as defined by state or local law;
(iii)i[(C)]iia violation of a state or local law related to motor vehicle
traffic control, including a law regulating the operation of vehicles on highways,
arising in connection with a fatal accident;
(iv)i[(D)]iiimproper or erratic traffic lane change;
(v)i[(E)]iifollowing the vehicle ahead too closely; or
(vi)i[(F)iioperating] a [commercial motor vehicle in] violation of
Section 522.011; or
(B)iia violation of Section [or] 522.015.
SECTIONi7.iiSection 522.081, Transportation Code, is amended to read as follows:
Sec.i522.081.iiDISQUALIFICATION. (a) This subsection applies [only] to a
violation committed while operating any motor vehicle, including a commercial motor
vehicle. A person who holds a commercial driver's license is disqualified from driving
a commercial motor vehicle for:
(1)ii60 days if convicted of:
(A)iitwo serious traffic violations that occur within a three-year period; or
(B)iione violation of a law that regulates the operation of a motor vehicle at a railroad grade crossing; or
Friday, May 30, 2003 SENATE JOURNAL 4137
(2)ii120 days if convicted of:
(A)iithree serious traffic violations arising from separate incidents occurring within a three-year period; or
(B)iitwo violations of a law that regulates the operation of a motor
vehicle at a railroad grade crossing that occur within a three-year period[; or
[(3)iione year if convicted of three violations of a law that regulates the
operation of a motor vehicle at a railroad grade crossing that occur within a three-year
period].
(b)iiThis subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle, except as provided by this subsection. A person who holds a commercial driver's license is disqualified from driving a commercial motor vehicle for one year:
(1)iiif convicted of three violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period;
(2)iion first conviction of:
(A)i[(1)]iidriving a [commercial] motor vehicle under the influence of
alcohol or a controlled substance, including a violation of Section 49.04 or 49.07,
Penal Code;
(B)i[(2)iidriving a commercial motor vehicle while the person's alcohol
concentration was 0.04 or more;
[(3)iiintentionally] leaving the scene of an accident involving a [commercial]
motor vehicle driven by the person;
(C)i[(4)]iiusing a [commercial] motor vehicle in the commission of a
felony, other than a felony described by Subsection (d)(2);
(D)i[(5)iirefusing to submit to a test to determine the person's alcohol
concentration or the presence in the person's body of a controlled substance or drug
while driving a commercial motor vehicle;
[(6)]iicausing the death of another person through the negligent or criminal
operation of a [commercial] motor vehicle; or
(E)i[(7)]iidriving a commercial motor vehicle while the person's
commercial driver's license is revoked, suspended, or canceled, or while the person is
disqualified from driving a commercial motor vehicle, for an action or conduct that
occurred while operating a commercial motor vehicle;
(3)iifor refusing to submit to a test under Chapter 724 to determine the person's alcohol concentration or the presence in the person's body of a controlled substance or drug while operating a motor vehicle in a public place; or
(4)iiif an analysis of the person's blood, breath, or urine under Chapter 522, 524, or 724 determines that the person:
(A)iihad an alcohol concentration of 0.04 or more, or that a controlled substance or drug was present in the person's body, while operating a commercial motor vehicle in a public place; or
(B)iihad an alcohol concentration of 0.08 or more while operating a motor vehicle, other than a commercial motor vehicle, in a public place.
(c)iiA person who holds a commercial driver's license is disqualified from operating a commercial motor vehicle for three years if:
(1)iithe person:
4138 78th Legislature — Regular Session 82nd Day
(A)iiis convicted of an offense [If a violation] listed in Subsection (b)(2)
and the vehicle being operated by the person was transporting a hazardous material
required to be placarded; or
(B)iirefuses to submit to a test under Chapter 724 to determine the person's alcohol concentration or the presence in the person's body of a controlled substance or drug while operating a motor vehicle in a public place and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or
(2)iian analysis of the person's blood, breath, or urine under Chapter 522, 524, or 724 determines that while transporting a hazardous material required to be placarded the person:
(A)iiwhile operating a commercial motor vehicle in a public place had an alcohol concentration of 0.04 or more, or a controlled substance or drug present in the person's body; or
(B)iiwhile operating a motor vehicle, other than a commercial motor
vehicle, in a public place had an alcohol concentration of 0.08 or more [(b)iioccurred
while the person was transporting a hazardous material required to be placarded, the
person is disqualified for three years].
(d)iiA person is disqualified from driving a commercial motor vehicle for life:
(1)iiif the person [:
[(1)]iiis convicted [of] two or more times [violations] of an offense specified
by Subsection (b)(2) [(b)], or a combination of those offenses, arising from two or
more separate incidents; [or]
(2)iiif the person uses a [commercial] motor vehicle in the commission of a
felony involving:
(A)iithe manufacture, distribution, or dispensing of a controlled substance; or
(B)iipossession with intent to manufacture, distribute, or dispense a controlled substance; or
(3)iifor any combination of two or more of the following, arising from two or more separate incidents:
(A)iia conviction of the person for an offense described by Subsection (b)(2);
(B)iia refusal by the person described by Subsection (b)(3); and
(C)iian analysis of the person's blood, breath, or urine described by Subsection (b)(4).
(e)iiA person may not be issued a commercial driver's license if, in connection with the person's operation of a commercial motor vehicle, the person commits an offense or engages in conduct that would disqualify the holder of a commercial driver's license from operating a commercial motor vehicle, or is determined to have had an alcohol concentration of 0.04 or more or to have had a controlled substance or drug present in the person's body. The period of prohibition under this subsection is equal to the appropriate period of disqualification required by Subsections (a)-(d).
(f)iiIn this section, "felony" means an offense under state or federal law that is punishable by death or imprisonment for a term of more than one year.
Friday, May 30, 2003 SENATE JOURNAL 4139
SECTIONi8.iiSection 522.087, Transportation Code, is amended to read as follows:
Sec.i522.087.iiPROCEDURES APPLICABLE TO DISQUALIFICATION. (a) A
person is automatically disqualified under Section 522.081(a)(1)(B), Section
522.081(b)(2) [522.081(b)(1), (3), (4), (6), or (7)], or Section 522.081(d)(2). An
appeal may not be taken from the disqualification.
(b)iiDisqualifying a person under Section 522.081(a), other than under Subdivision (1)(B) of that subsection, Section 522.081(b)(1), or Section 522.081(d)(1) or (3) is subject to the notice and hearing procedures of Sections 521.295-521.303. An appeal of the disqualification is subject to Section 521.308.
SECTIONi9.iiSection 643.052, Transportation Code, is amended to read as follows:
Sec.i643.052.iiAPPLICATION. To register under this subchapter a motor carrier must submit to the department an application on a form prescribed by the department. The application must include:
(1)iithe name of the owner and the principal business address of the motor carrier;
(2)iithe name and address of the legal agent for service of process on the carrier in this state, if different;
(3)iia description of each vehicle requiring registration the carrier proposes to operate, including the motor vehicle identification number, make, and unit number;
(4)iia statement as to whether the carrier proposes to transport household goods or a hazardous material;
(5)iia declaration that the applicant has knowledge of all laws and rules
relating to motor carrier safety, including this chapter, Chapter 644, and Subtitle C;
[and]
(6)iia certification that the carrier is in compliance with the drug testing requirements of 49 C.F.R. Part 382, and if the carrier belongs to a consortium, as defined by 49 C.F.R. Part 382, the names of the persons operating the consortium; and
(7)iiany other information the department by rule determines is necessary for the safe operation of a motor carrier under this chapter.
SECTIONi10.iiSection 643.056(a), Transportation Code, is amended to read as follows:
(a)iiA motor carrier required to register under this subchapter shall supplement the carrier's application for registration before:
(1)iithe carrier transports a hazardous material or household goods if the carrier has not provided notice of the transportation to the department in the carrier's initial or a supplemental application for registration;
(2)iithe carrier operates a vehicle requiring registration that is not described on the carrier's initial or a supplemental application for registration; or
(3)iithe carrier changes the carrier's principal business address, legal agent, ownership, consortium, as defined by 49 C.F.R. Part 382, or name.
SECTIONi11.iiSubchapter B, Chapter 643, Transportation Code, is amended by adding Section 643.064 to read as follows:
4140 78th Legislature — Regular Session 82nd Day
Sec.i643.064.iiREPORT OF POSITIVE RESULT. (a) A motor carrier required to register under this chapter shall report to the Department of Public Safety a valid positive result on a controlled substances test performed as part of the carrier's drug testing program or consortium, as defined by 49 C.F.R. Part 382, on an employee of the carrier who holds a commercial driver's license under Chapter 522.
(b)iiThe Department of Public Safety shall maintain the information provided under this section.
(c)iiInformation maintained under this section is confidential and only subject to release as provided by Section 521.053.
SECTIONi12.iiArticle 45.051, Code of Criminal Procedure, is amended to read as follows:
Art.i45.051.iiSUSPENSION OF SENTENCE AND DEFERRAL OF FINAL
DISPOSITION. (a) On a plea of guilty or nolo contendere by a defendant or on a
finding of guilt in a misdemeanor case punishable by fine only and payment of all
court costs, the judge [justice] may, at the judge's discretion, defer further proceedings
without entering an adjudication of guilt and place the defendant on probation for a
period not to exceed 180 days. An order of deferral under this subsection terminates
any liability under a bail bond or an appearance bond given for the charge.
(b)iiDuring the deferral period, the judge [justice] may, at the judge's discretion,
require the defendant to:
(1)iipost a bond in the amount of the fine assessed to secure payment of the fine;
(2)iipay restitution to the victim of the offense in an amount not to exceed the fine assessed;
(3)iisubmit to professional counseling;
(4)iisubmit to diagnostic testing for alcohol or a controlled substance or drug;
(5)iisubmit to a psychosocial assessment;
(6)iiparticipate in an alcohol or drug abuse treatment or education program;
(7)iipay the costs of any diagnostic testing, psychosocial assessment, or
participation in a treatment or education program either directly or through the court
as court costs; [and]
(8)iicomplete a driving safety course approved under the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon's Texas Civil Statutes) or another course as directed by the judge;
(9)iipresent to the court satisfactory evidence that the defendant has complied with each requirement imposed by the judge under this article; and
(10)iicomply with any other reasonable condition.
(c)iiOn determining that [At the conclusion of the deferral period, if] the
defendant [presents satisfactory evidence that he] has complied with the requirements
imposed by the judge under this article, the judge [justice] shall dismiss the complaint,
and it shall be clearly noted in the docket that the complaint is dismissed and that
there is not a final conviction. [Otherwise, the justice may proceed with an
adjudication of guilt. After an adjudication of guilt, the justice may reduce the fine
assessed or may then impose the fine assessed, less any portion of the assessed fine
that has been paid.] If the complaint is dismissed, a special expense not to exceed the
Friday, May 30, 2003 SENATE JOURNAL 4141
(c-1)iiThis subsection applies only to an offense involving the operation of a motor vehicle, other than an offense under Section 545.413, Transportation Code. At the conclusion of the deferral period, if the defendant presents satisfactory evidence that the defendant has complied with the requirements imposed, the justice shall proceed with an adjudication of guilt but may not impose the fine assessed or a reduced fine.
(d)iiIf by [at] the conclusion of the deferral period the defendant does not present
satisfactory evidence that the defendant complied with the requirements imposed, the
judge [justice] may impose the fine assessed or impose a lesser fine. The imposition of
the fine or lesser fine constitutes a final conviction of the defendant.
(e)iiRecords relating to a complaint dismissed as provided by this article may be
expunged under Article 55.01 [of this code]. If a complaint is dismissed under this
article, there is not a final conviction and the complaint may not be used against the
person for any purpose.
(f)iiThis article does not apply to:
(1)iian offense to which Section 542.404 or 729.004(b), Transportation Code, applies; or
(2)iia traffic offense committed by a person who holds a commercial driver's license.
SECTIONi13.iiArticle 45.0511, Code of Criminal Procedure, is amended to read as follows:
Art.i45.0511.iiDRIVING SAFETY COURSE OR MOTORCYCLE
OPERATOR COURSE DISMISSAL [DEFERRED DISPOSITION] PROCEDURES
[APPLICABLE TO TRAFFIC OFFENSES]. (a) This article applies only to an
alleged offense that:
(1)iiis within the jurisdiction of a justice court or a municipal court;
(2)iiinvolves [involving] the operation of a motor vehicle; and
(3)iiis [other than a commercial motor vehicle, as] defined by:
(A)iiSection 472.022 [522.003], Transportation Code;
(B)iiSubtitle C, Title 7, Transportation Code; or
(C)iiSection 729.001(a)(3), Transportation Code[, and supplements
Article 45.051].
(b)iiThe judge [During the deferral period under Article 45.051, the justice:
[(1)]iishall require the defendant to successfully complete a driving safety
course approved by the Texas Education Agency or a course under the motorcycle
operator training and safety program approved by the designated state agency under
Chapter 662, Transportation Code, if:
(1)iithe defendant elects driving safety course or motorcycle operator training course dismissal under this article;
(2)ii[deferred disposition and] the defendant has not completed an approved
driving safety course or motorcycle operator training course, as appropriate, within
the [preceding] 12 months preceding the date of the offense; [and]
4142 78th Legislature — Regular Session 82nd Day
(3)i[(2)iimay require the defendant to successfully complete a driving safety
course approved by the Texas Education Agency if the defendant has completed an
approved driving safety course within the preceding 12 months.
[(c)iiSubsection (b)(1) applies only if:
[(1)]iithe defendant [person] enters a plea under Article 45.021 in person or
in writing of no contest or guilty on or [and,] before the answer date on the notice to
appear and:
(A)iipresents in person or by counsel to the court a [an oral or written]
request to take a course; or
(B)iisends to the court by certified mail, return receipt requested, postmarked on or before the answer date on the notice to appear, a written request to take a course;
(4)i[(2)iithe court enters judgment on the person's plea of no contest or
guilty at the time the plea is made but defers imposition of the judgment for 180 days;
[(3)]iithe defendant [person] has a valid Texas driver's license or permit;
(5)i[(4)]iithe defendant [person] is charged with an offense to which this
article applies, other than speeding 25 miles per hour or more over the posted speed
limit; and
(6)i[(5)]iithe defendant [person] provides evidence of financial responsibility
as required by Chapter 601, Transportation Code[;
[(6)iithe defendant's driving record as maintained by the Texas Department
of Public Safety shows the defendant has not completed an approved driving safety
course or motorcycle operator training course, as appropriate, within the 12 months
preceding the date of the offense; and
[(7)iithe defendant files an affidavit with the court stating that the person is
not taking a course under this section and has not completed a course that is not
shown on the person's driving record within the 12 months preceding the date of the
offense].
(c)iiThe court shall enter judgment on the defendant's plea of no contest or guilty at the time the plea is made, defer imposition of the judgment, and allow the defendant 90 days to successfully complete the approved driving safety course or motorcycle operator training course and present to the court:
(1)iia uniform certificate of completion of the driving safety course or a verification of completion of the motorcycle operator training course;
(2)iithe defendant's driving record as maintained by the Department of Public Safety showing that the defendant had not completed an approved driving safety course or motorcycle operator training course, as applicable, within the 12 months preceding the date of the offense; and
(3)iian affidavit stating that the defendant was not taking a driving safety course or motorcycle operator training course, as applicable, under this article on the date the request to take the course was made and had not completed such a course that is not shown on the defendant's driving record within the 12 months preceding the date of the offense.
Friday, May 30, 2003 SENATE JOURNAL 4143
(d)iiNotwithstanding Subsections (b)(2) and (3), [Subsection (c)(1), on a written
motion submitted to the court] before the final disposition of the case, the court may
grant a request to take a driving safety course or a motorcycle operator training course
under this article.
(e)iiA request to take a driving safety course or motorcycle operator training
course made at or before the time and at the place at which a defendant [person] is
required to appear in court is an appearance in compliance with the defendant's
[person's] promise to appear.
(f)iiIn addition to court costs and fees authorized or imposed by a law of this
state and applicable to the offense, the [The] court may:
(1)iirequire a defendant [person] requesting a [driving safety] course under
Subsection (b) to pay an administrative [a] fee set by the court to cover the cost of
administering this article at an amount of not more than $10; or
(2)iirequire a defendant requesting a course under Subsection (d) to pay a fee
set by the court at an amount not to exceed the maximum amount of the fine for the
offense committed by the defendant[, including any other fee authorized by statute or
municipal ordinance, to cover the cost of administering this article].
(g)iiA defendant [person] who requests but does not take a course is not entitled
to a refund of the fee.
(h)iiFees collected by a municipal court shall be deposited in the municipal treasury. Fees collected by another court shall be deposited in the county treasury of the county in which the court is located.
(i)iiIf a defendant [person] requesting a [driving safety] course under this article
fails to comply with Subsection (c) [furnish evidence of the successful completion of
the course to the court], the court shall:
(1)iinotify the defendant [person] in writing, mailed to the address on file
with the court or appearing on the notice to appear, of that failure; and
(2)iirequire the defendant [person] to appear at the time and place stated in
the notice to show cause why the evidence was not timely submitted to the court.
(j)iiIf the defendant [A person who] fails to appear at the time and place stated in
the notice under Subsection (i), or appears at the time and place stated in the notice
but does not show good cause for the defendant's failure to comply with Subsection
(c), the court shall enter an adjudication of guilt and impose sentence [commits a
misdemeanor punishable as provided by Section 543.009, Transportation Code].
(k)iiOn a defendant's [person's] showing of good cause for failure to furnish
evidence to the court, the court may allow an extension of time during which the
defendant [person] may present:
(1)iia uniform certificate of course completion as evidence that the defendant
[person] successfully completed the driving safety course; or
(2)iia verification of course completion as evidence that the defendant successfully completed the motorcycle operator training course.
(l)iiWhen a defendant [person] complies with Subsection (c) [(b) and a uniform
certificate of course completion is accepted by the court], the court shall:
(1)iiproceed with an adjudication of guilt, but may not impose the fine
assessed or a reduced fine [remove the judgment and dismiss the charge];
4144 78th Legislature — Regular Session 82nd Day
(2)iireport the fact that the defendant [person] successfully completed a
driving safety course or a motorcycle operator training course and the date of
completion to the Texas Department of Public Safety for inclusion in the person's
driving record; and
(3)iistate in that [this] report whether the course was taken under [the
procedure provided by] this article to provide information necessary to determine
eligibility to take a subsequent course under Subsection (b).
(m)iiIf the defendant is charged with more than one offense, the defendant may
complete a driving safety course in connection with only one of the charges [The
court may dismiss only one charge for each completion of a course].
(n)ii[A charge that is dismissed under this article may not be part of a person's
driving record or used for any purpose.
[(o)] An insurer delivering or issuing for delivery a motor vehicle insurance
policy in this state may not cancel or increase the premium charged an insured under
the policy because the court proceeded with an adjudication of guilt under Subsection
(l)(1) or because the insured completed a driving safety course or a motorcycle
operator training course [or had a charge dismissed] under this article.
(o)i[(p)]iiThe court shall advise a defendant [person] charged with a
misdemeanor under Section 472.022, Transportation Code, Subtitle C, Title 7,
Transportation Code, or Section 729.001(a)(3), Transportation Code, committed while
operating a motor vehicle of the defendant's [person's] right under this article to
successfully complete a driving safety course or, if the offense was committed while
operating a motorcycle, a motorcycle operator training course. The right to complete a
course does not apply to a defendant [person] charged with:
(1)iia violation of Section 545.066, [545.401, 545.421,] 550.022, or
550.023, Transportation Code;[,] or
(2)iian offense to which [serious traffic violation as defined by] Section
542.404 or 729.004(b) [522.003], Transportation Code, applies.
(p)iiA notice to appear issued for an offense to which this article applies must inform a defendant charged with an offense under Section 472.022, Transportation Code, an offense under Subtitle C, Title 7, Transportation Code, or an offense under Section 729.001(a)(3), Transportation Code, committed while operating a motor vehicle of the defendant's right to complete a driving safety course or, if the offense was committed while operating a motorcycle, of the defendant's right to complete a motorcycle operator training course. The notice required by this subsection must read substantially as follows:
"You may be able to require that this charge be dismissed by successfully completing a driving safety course or a motorcycle operator training course. You will lose that right if, on or before your appearance date, you do not provide the court with notice of your request to take the course."
(q)iiIf the notice required by Subsection (p) is not provided to the defendant charged with the offense, the defendant may continue to exercise the defendant's right to take a driving safety course or a motorcycle operator training course until the notice required by Subsection (p) is provided to the defendant or there is a final disposition of the case.
Friday, May 30, 2003 SENATE JOURNAL 4145
(r)iiThis article does not apply to an offense committed by a person who holds a commercial driver's license.
(s)iiAn order of deferral under Subsection (c) terminates any liability under a bail
bond or appearance bond given for the charge. [(q)iiNothing in this article shall
prevent a court from assessing a special expense for deferred disposition in the same
manner as provided by Article 45.051. For a deferred disposition under Subsection
(b)(1), the court may only collect a fee of not more than $10 in addition to any
applicable court cost.]
SECTIONi14.iiThe following laws are repealed:
(1)iiSection 543.101, Transportation Code;
(2)iiSection 543.117, Transportation Code; and
(3)iiSection 601.022, Transportation Code.
SECTIONi15.ii(a) Except as provided by Subsection (c) of this section, this Act takes effect September 1, 2003.
(b)iiArticles 45.051 and 45.0511, Code of Criminal Procedure, as amended by this Act, apply only to an offense committed on or after September 1, 2003. An offense committed before September 1, 2003, is covered by Articles 45.051 and 45.0511 of that code as those laws existed on the date the offense was committed, and the former law is continued in effect for that purpose.
(c)iiSections 6-8 of this Act take effect June 1, 2005. Sections 522.081 and 522.087, Transportation Code, as amended by those sections, apply only to conduct that is engaged in or to an offense that is committed on or after June 1, 2005. Conduct that is engaged in or an offense committed before June 1, 2005, is governed by Sections 522.081 and 522.087, Transportation Code, as those sections existed immediately before that date, and the former law is continued in effect for that purpose.
The amendment was read.
Senator Barrientos moved to concur in the House amendment to SBi1904.
The motion prevailed by a viva voce vote.
SENATE BILL 1803 WITH HOUSE AMENDMENT
Senator Duncan called SBi1803 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 1803 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to certain licensing requirements and violations under the Texas Food, Drug, and Cosmetic Act; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubdivision (23), Section 431.002, Health and Safety Code, is amended to read as follows:
(23)ii"Manufacture" means:
4146 78th Legislature — Regular Session 82nd Day
(A)iithe process of combining or purifying food or packaging food for
sale to a person at wholesale or retail, and includes repackaging, [or] labeling, or
relabeling of any food;
(B)iithe process of preparing, propagating, compounding, processing, packaging, repackaging, labeling, testing, or quality control of a drug or drug product, but does not include compounding that is done within the practice of pharmacy and pursuant to a prescription from a practitioner for a patient;
(C)iithe process of preparing, fabricating, assembling, processing, packing, repacking, labeling, or relabeling a device; or
(D)iithe making of any cosmetic product by chemical, physical, biological, or other procedures, including manipulation, sampling, testing, or control procedures applied to the product.
SECTIONi2.iiSection 431.021, Health and Safety Code, is amended to read as follows:
Sec.i431.021.iiPROHIBITED ACTS. The following acts and the causing of the following acts within this state are unlawful and prohibited:
(a)iithe introduction or delivery for introduction into commerce of any food, drug, device, or cosmetic that is adulterated or misbranded;
(b)iithe adulteration or misbranding of any food, drug, device, or cosmetic in commerce;
(c)iithe receipt in commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise;
(d)iithe distribution in commerce of a consumer commodity, if such commodity is contained in a package, or if there is affixed to that commodity a label that does not conform to the provisions of this chapter and of rules adopted under the authority of this chapter; provided, however, that this prohibition shall not apply to persons engaged in business as wholesale or retail distributors of consumer commodities except to the extent that such persons:
(1)iiare engaged in the packaging or labeling of such commodities; or
(2)iiprescribe or specify by any means the manner in which such commodities are packaged or labeled;
(e)iithe introduction or delivery for introduction into commerce of any article in violation of Section 431.084, 431.114, or 431.115;
(f)iithe dissemination of any false advertisement;
(g)iithe refusal to permit entry or inspection, or to permit the taking of a sample or to permit access to or copying of any record as authorized by Sections 431.042-431.044; or the failure to establish or maintain any record or make any report required under Section 512(j), (l), or (m) of the federal Act, or the refusal to permit access to or verification or copying of any such required record;
(h)iithe manufacture within this state of any food, drug, device, or cosmetic that is adulterated or misbranded;
(i)iithe giving of a guaranty or undertaking referred to in Section 431.059, which guaranty or undertaking is false, except by a person who relied on a guaranty or undertaking to the same effect signed by, and containing the name and address of the
Friday, May 30, 2003 SENATE JOURNAL 4147
(j)iithe use, removal, or disposal of a detained or embargoed article in violation of Section 431.048;
(k)iithe alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to a food, drug, device, or cosmetic, if such act is done while such article is held for sale after shipment in commerce and results in such article being adulterated or misbranded;
(l)(1)iiforging, counterfeiting, simulating, or falsely representing, or without proper authority using any mark, stamp, tag, label, or other identification device authorized or required by rules adopted under this chapter or the regulations promulgated under the provisions of the federal Act;
(2)iimaking, selling, disposing of, or keeping in possession, control, or custody, or concealing any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of any of the foregoing on any drug or container or labeling thereof so as to render such drug a counterfeit drug;
(3)iithe doing of any act that causes a drug to be a counterfeit drug, or the sale or dispensing, or the holding for sale or dispensing, of a counterfeit drug;
(m)iithe using by any person to the person's own advantage, or revealing, other than to the commissioner, an authorized agent, a health authority or to the courts when relevant in any judicial proceeding under this chapter, of any information acquired under the authority of this chapter concerning any method or process that as a trade secret is entitled to protection;
(n)iithe using, on the labeling of any drug or device or in any advertising relating to such drug or device, of any representation or suggestion that approval of an application with respect to such drug or device is in effect under Section 431.114 or Section 505, 515, or 520(g) of the federal Act, as the case may be, or that such drug or device complies with the provisions of such sections;
(o)iithe using, in labeling, advertising or other sales promotion of any reference to any report or analysis furnished in compliance with Sections 431.042-431.044 or Section 704 of the federal Act;
(p)iiin the case of a prescription drug distributed or offered for sale in this state, the failure of the manufacturer, packer, or distributor of the drug to maintain for transmittal, or to transmit, to any practitioner licensed by applicable law to administer such drug who makes written request for information as to such drug, true and correct copies of all printed matter that is required to be included in any package in which that drug is distributed or sold, or such other printed matter as is approved under the federal Act. Nothing in this subsection shall be construed to exempt any person from any labeling requirement imposed by or under other provisions of this chapter;
(q)(1) placing or causing to be placed on any drug or device or container of any drug or device, with intent to defraud, the trade name or other identifying mark, or imprint of another or any likeness of any of the foregoing;
4148 78th Legislature — Regular Session 82nd Day
(2)iiselling, dispensing, disposing of or causing to be sold, dispensed, or disposed of, or concealing or keeping in possession, control, or custody, with intent to sell, dispense, or dispose of, any drug, device, or any container of any drug or device, with knowledge that the trade name or other identifying mark or imprint of another or any likeness of any of the foregoing has been placed thereon in a manner prohibited by Subdivision (1) of this subsection; or
(3)iimaking, selling, disposing of, causing to be made, sold, or disposed of, keeping in possession, control, or custody, or concealing with intent to defraud any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of any of the foregoing on any drug or container or labeling of any drug or container so as to render such drug a counterfeit drug;
(r)iidispensing or causing to be dispensed a different drug in place of the drug ordered or prescribed without the express permission in each case of the person ordering or prescribing;
(s)iithe failure to register in accordance with Section 510 of the federal Act, the failure to provide any information required by Section 510(j) or (k) of the federal Act, or the failure to provide a notice required by Section 510(j)(2) of the federal Act;
(t)(1)iithe failure or refusal to:
(A)iicomply with any requirement prescribed under Section 518 or 520(g) of the federal Act; or
(B)iifurnish any notification or other material or information required by or under Section 519 or 520(g) of the federal Act;
(2)iiwith respect to any device, the submission of any report that is required by or under this chapter that is false or misleading in any material respect;
(u)iithe movement of a device in violation of an order under Section 304(g) of the federal Act or the removal or alteration of any mark or label required by the order to identify the device as detained;
(v)iithe failure to provide the notice required by Section 412(b) or 412(c), the failure to make the reports required by Section 412(d)(1)(B), or the failure to meet the requirements prescribed under Section 412(d)(2) of the federal Act;
(w)iiexcept as provided under Subchapter M, the acceptance by a person of an unused prescription or drug, in whole or in part, for the purpose of resale, after the prescription or drug has been originally dispensed, or sold;
(x)iiengaging in the wholesale distribution of drugs or operating as a distributor or manufacturer of devices in this state without filing a licensing statement with the commissioner as required by Section 431.202 or having a license as required by Section 431.272, as applicable;
(y)iiengaging in the manufacture of food in this state or operating as a warehouse
operator [food wholesaler] in this state without having a license as required by Section
431.222 or operating as a food wholesaler in this state without having a license under
Section 431.222 or being registered under Section 431.2211, as appropriate; [or]
Friday, May 30, 2003 SENATE JOURNAL 4149
(z)iiunless approved by the United States Food and Drug Administration pursuant to the federal Act, the sale, delivery, holding, or offering for sale of a self-testing kit designed to indicate whether a person has a human immunodeficiency virus infection, acquired immune deficiency syndrome, or a related disorder or condition; or
(aa)iimaking a false statement or false representation in an application for a license or in a statement, report, or other instrument to be filed with the board, the commissioner, or the department under this chapter.
SECTIONi3.iiSubsection (a), Section 431.059, Health and Safety Code, is amended to read as follows:
(a)iiA person commits an offense if the person violates any of the provisions of
Section 431.021 relating to unlawful or prohibited acts. A first [An] offense under this
subsection is a Class A misdemeanor unless it is shown on the trial of an offense
under this subsection that the defendant was previously convicted of an offense under
this subsection, in which event the offense is a state jail felony. In a criminal
proceeding under this section, it is not necessary to prove intent, knowledge,
recklessness, or criminal negligence of the defendant beyond the degree of culpability,
if any, stated in Section 431.021 to establish criminal responsibility for the violation.
SECTIONi4.iiThe heading to Subchapter J, Chapter 431, Health and Safety Code, is amended to read as follows:
SUBCHAPTER J. FOOD MANUFACTURERS, [AND] FOOD
WHOLESALERS, AND WAREHOUSE OPERATORS
SECTIONi5.iiSection 431.221, Health and Safety Code, is amended by amending Subdivision (1) and adding Subdivision (6) to read as follows:
(1)ii"Place of business" means:
(A)iieach location where:
(i)iia person manufactures food; or
(ii)ii[where] food for wholesale is distributed; or
(B)iia warehouse where food is stored.
(6)ii"Warehouse operator" means a person that operates a warehouse where food is stored.
SECTIONi6.iiSection 431.2211, Health and Safety Code, is amended be adding Subsections (d) and (e) to read as follows:
(d)iiA food wholesaler is not required to obtain a license under this subchapter for a place of business if all of the food distributed from that place of business will be stored in a warehouse licensed under this subchapter.
(e)iiA food wholesaler that is not required to obtain a license for a place of business under Subsection (d) shall register that place of business with the department. The department shall adopt rules for the registration of food wholesalers under this section.
SECTIONi7.iiSection 431.222, Health and Safety Code, is amended to read as follows:
4150 78th Legislature — Regular Session 82nd Day
Sec.i431.222.iiLICENSE REQUIRED; LICENSING FEES. (a) Except as
provided by Section 431.2211, a [A] food manufacturer, food wholesaler, or
warehouse operator in this state must apply for and obtain from the department each
year a license for each place of business that the food manufacturer, food wholesaler,
or warehouse operator operates in this state. The food manufacturer, food wholesaler,
or warehouse operator must pay a licensing fee for each establishment.
(b)iiThe [A food wholesaler in this state must apply for and obtain from the
department each year a license for each place of business that the wholesaler operates
in this state. The food wholesaler must pay a licensing fee for each place of business.
[(c)iiFor the purpose of collecting licensing fees under this section, the]
department shall require a food manufacturer that distributes only food manufactured
by that firm to obtain only a license as a food manufacturer. A person that does not
manufacture food and serves only as a food wholesaler [wholesale distributor] must
obtain only a food wholesaler's [wholesale distributor's] license. A person that
distributes both its own manufactured food and food it does not manufacture must
obtain only a food manufacturer's license. A warehouse operator who also distributes
food is required to obtain only a warehouse operator license.
SECTIONi8.iiSubsection (a), Section 431.223, Health and Safety Code, is amended to read as follows:
(a)iiThe person applying for a license under this subchapter must provide, at a minimum, the following information in a license application:
(1)iithe name under which the food manufacturer, [or] wholesale distributor,
or warehouse operator conducts business;
(2)iithe address of each place of business in this state that is licensed;
(3)iiif the food manufacturer, [or] wholesale distributor, or warehouse
operator is an individual, a partnership, or an association, the name or names of:
(A)iithe proprietor, if the business is a sole proprietorship;
(B)iiall partners, if the business is a partnership; or
(C)iiall principals, if the business is an association;
(4)iiif the food manufacturer, [or] wholesale distributor, or wholesale
operator is a corporation, the date and place of incorporation and the name and
address of its registered agent in this state;
(5)iithe name and residences of the individuals in an administrative capacity, showing:
(A)iithe managing proprietor, if the business is a sole proprietorship;
(B)iithe managing partner, if the business is a partnership;
(C)iithe officers and directors, if the business is a corporation; or
(D)iithe persons in a managerial capacity, if the business is an association; and
(6)iithe residence address of a person in charge of each place of business.
SECTIONi9.ii(a) This Act applies only to a food manufacturer license, food wholesaler license, or warehouse operator license issued on or after that date. A food manufacturer license, food wholesaler license, or warehouse operator license issued before the effective date of this Act is covered by the law in effect on the date the license was issued, and the former law is continued in effect for that purpose.
Friday, May 30, 2003 SENATE JOURNAL 4151
(b)iiA food wholesaler that obtains or renews a license before the effective date of this Act is not entitled to a refund for any fee paid to the Texas Department of Health for the license issuance or renewal, regardless of the food wholesaler's eligibility for an exemption under Subsection (d), Section 431.2211, Health and Safety Code, as added by this Act.
SECTIONi10.ii(a) The change in law made by this Act to Sections 431.002, 431.021, and 431.059, Health and Safety Code, applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before that date.
(b)iiAn 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.
SECTIONi11.iiThis Act takes effect September 1, 2003.
The amendment was read.
Senator Duncan moved to concur in the House amendment to SBi1803.
The motion prevailed by a viva voce vote.
SENATE BILL 1369 WITH HOUSE AMENDMENTS
Senator Duncan called SBi1369 from the President's table for consideration of the House amendments to the bill.
The Presiding Officer, Senator Carona in Chair, laid the bill and the House amendments before the Senate.
Amendment
Amend SB 1369 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to certain group benefits for retired school employees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 1575.002, Insurance Code, as effective June 1, 2003, is amended by repealing Subdivision (2), amending Subdivisions (1), (3), (4), and (7) and adding Subdivision (6-a) to conform to Section 3.03, Chapter 1187, Acts of the 77th Legislature, Regular Session, 2001, and to conform more closely to the source law from which the section was derived, and further amended to read as follows:
(1)ii"Active employee" means a contributing member of the Teacher
Retirement System of Texas [an employee as defined by Section 821.001,
Government Code,] who:
(A)iiis employed by a public school [a member of the system]; and
(B)iiis not entitled to coverage under a plan provided under Chapter 1551 or 1601.
(3)ii"Carrier" means an insurance company or hospital service corporation authorized by the department under this code or another insurance law of this state to provide any of the insurance coverages, benefits, or services provided by this chapter.
4152 78th Legislature — Regular Session 82nd Day
(4)ii"Fund" means the retired [Texas public] school employees group
insurance fund.
(6-a)ii"Public school" means:
(A)iia school district;
(B)iianother educational district whose employees are members of the Teacher Retirement System of Texas;
(C)iia regional education service center established under Chapter 8, Education Code; or
(D)iian open-enrollment charter school established under Subchapter D, Chapter 12, Education Code.
(7)ii"Trustee" ["System"] means the Teacher Retirement System of Texas.
SECTIONi2.iiSection 1575.004, Insurance Code, as effective June 1, 2003, is amended to read as follows:
Sec.i1575.004.iiDEFINITION OF RETIREE. In this chapter, "retiree" means:
(1)iian individual not eligible for coverage under a plan provided under Chapter 1551 or 1601 who:
(A)iiis at least 65 years of age and has taken a service retirement under
the Teacher Retirement System of Texas [system] with at least 10 years of service
credit in the system for actual service in public schools in this state or with at least five
years of service credit for actual public service in the public schools in this state and
with five years of military service credited in the Teacher Retirement System of Texas;
or
(B)iihas taken a service retirement under the Teacher Retirement System
of Texas, and who has at least 10 years of service credit for actual public service in the
public schools in this state or has at least five years of service credit for actual public
service in the public schools in this state and has five years of military service credited
in the Teacher Retirement System of Texas, and the sum of the individual's age and
amount of service credit described by this paragraph equals or exceeds the number 80
[and
[(B)iiis not eligible for coverage under a plan provided under Chapter
1551 or 1601]; or
(2)iian individual who:
(A)iihas taken a disability retirement under the Teacher Retirement
System of Texas [system]; and
(B)iiis entitled to receive monthly benefits from the Teacher Retirement
System of Texas [system].
SECTIONi3.ii(a)iiSection 1575.153, Insurance Code, as effective June 1, 2003, is amended to conform to Section 3.10, Chapter 1187, Acts of the 77th Legislature, Regular Session, 2001, and further amended to read as follows:
Sec.i1575.153.ii[AUTOMATIC] BASIC COVERAGE. A retiree [or active
employee of a participating school district] who applies for coverage during an
enrollment period may not be denied coverage in a basic plan provided under this
chapter unless the trustee [board of trustees] finds under Subchapter K that the retiree
[individual] defrauded or attempted to defraud the group program.
(b)iiSection 3.10, Chapter 1187, Acts of the 77th Legislature, Regular Session, 2001, is repealed.
Friday, May 30, 2003 SENATE JOURNAL 4153
SECTIONi4.iiSubchapter D, Chapter 1575, Insurance Code, as effective June 1, 2003, is amended by adding Sections 1575.161 and 1575.162 to read as follows:
Sec.i1575.161.iiOPEN ENROLLMENT; ADDITIONAL ENROLLMENT PERIODS. (a)iiA retiree eligible for coverage under the group program may select any coverage provided under this chapter for which the person is otherwise eligible:
(1)iion the date that the person retires; and
(2)iiduring any open enrollment periods for retirees set by the trustee by rule.
(b)iiIn addition to the enrollment periods authorized under Subsection (a), a retiree who:
(1)iiis enrolled in the group program as of August 31, 2004, and who is 65 years of age or older on that date may select coverage as described by Subsections (c) and (d) on September 1, 2004; or
(2)iienrolls in the group program on or after Septemberi1, 2004, and who is 65 years of age or older on or after that date may select coverage as described in Subsections (c) and (d) on the date that the retiree is 65 years of age.
(c)iiIf a retiree described by Subsection (b) is not covered by the Medicare program, the retiree may enroll in the next-higher coverage tier under the group program and may add dependent coverage in that same coverage tier.
(d)iiIf a retiree described by Subsection (b) is covered by the Medicare program, the retiree may enroll in any coverage tier under the group program and may add dependent coverage in that same coverage tier.
(e)iiThis section does not affect the right of a retiree enrolled in a coverage tier under the group program to select a lower level of coverage at any time.
Sec.i1575.162.iiSPECIAL ENROLLMENTS. This chapter does not limit the ability of an individual to enroll in the group program if the individual:
(1)iiexperiences a special enrollment event as provided by the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191, 110 Stat. 1936 (1996)), as amended; and
(2)iiis otherwise eligible to enroll in the group program.
SECTIONi5.iiSection 1575.201, Insurance Code, as effective June 1, 2003, is amended to read as follows:
Sec.i1575.201.iiADDITIONAL STATE CONTRIBUTIONS; CERTAIN
CONTRIBUTIONS. (a)iiThe state through the trustee [system] shall contribute from
money in the fund:
(1)iithe total cost of the basic plan covering each participating retiree; and
(2)iifor each participating dependent, surviving spouse, and surviving dependent child, the amount prescribed by the General Appropriations Act to cover part of the cost of the basic plan covering the dependent, surviving spouse, and surviving dependent child.
(b)iiThe trustee shall collect the amount of premium required for basic coverage under the group program that exceeds the amount contributed by the state for those individuals described by Subsection (a)(2).
SECTIONi6.iiSection 1575.202(a), Insurance Code, as effective June 1, 2003, is amended to read as follows:
(a)iiEach state fiscal year, the state shall contribute to the fund an amount equal
to one [0.5] percent of the salary of each active employee.
4154 78th Legislature — Regular Session 82nd Day
SECTIONi7.iiSubsection (a), Section 1575.203, Insurance Code, as effective June 1, 2003, is amended to read as follows:
(a)iiEach state fiscal year, each active employee shall, as a condition of
employment, contribute to the fund an amount equal to 0.5 [0.25] percent of the
employee's salary.
SECTIONi8.iiSection 1575.204, Insurance Code, as effective June 1, 2003, is amended to read as follows:
Sec.i1575.204.iiPUBLIC SCHOOL CONTRIBUTION [RATIO OF STATE
AND ACTIVE EMPLOYEE CONTRIBUTIONS]. Each state fiscal year, each public
school shall contribute to the fund the amount prescribed by the General
Appropriations Act, which may not be less than 0.25 percent or greater than 0.75
percent of the salary of each active employee of the public school. The public school
shall make the contributions on a monthly basis and as otherwise prescribed by the
trustee [If the amount of state and active employee contributions to the fund is raised
by the legislature above the percentages provided by Sections 1575.202 and 1575.203
to provide adequate funding for the group program, the ratio between the state's
contribution and the active employees' contributions must be maintained at two to
one].
SECTIONi9.iiSubchapter E, Chapter 1575, Insurance Code, as effective June 1, 2003, is amended by adding Sections 1575.211 and 1575.212 to read as follows:
Sec.i1575.211.iiCOST SHARING. (a)iiThe total costs for the operation of the group program shall be shared among the state, the public schools, the active employees, and the retirees in the manner prescribed by the General Appropriations Act.
(b)iiIn determining the allocation of total costs under this section, the state shall pay not more than 55 percent of the total costs, retirees shall pay at least 30 percent of the total costs, and the balance shall be paid by active employees and public schools.
Sec.i1575.212.iiPAYMENT BY RETIREES; RANGES. (a)iiThe trustee by rule shall establish ranges for payment of the share of total costs allocated under Section 1575.211 to retirees, with different levels for:
(1)iiretirees who are not eligible to participate in Part A of the Medicare program;
(2)iiretirees who are eligible for participation but are not participating in Part A of the Medicare program; and
(3)iiretirees who are eligible for participation in the Medicare program and are participating in Part A of the Medicare program.
(b)iiIn establishing ranges for payment of the share of total costs allocated under Section 1575.211 to retirees, the trustee may consider the years of service credit accrued by a retiree and may reward those retirees with more years of service credit.
SECTIONi10.iiThe following laws are repealed:
(1)iiSection 1575.154, Insurance Code, as effective June 1, 2003; and
(2)iiSubsection (h), Section 823.401, Government Code.
SECTIONi11.iiEffective September 1, 2003, the comptroller of public accounts shall transfer $42 million from the Texas school employees uniform group coverage trust fund established under Section 8, Article 3.50-7, Insurance Code, to the retired school employees group insurance fund described by Subchapter G, Chapter 1575,
Friday, May 30, 2003 SENATE JOURNAL 4155
SECTIONi12.iiThe change in law made by this Act to Subsection (a), Section 1575.202, Subsection (a), Section 1575.203, and Sections 1575.204 and 1575.211, Insurance Code, takes effect Septemberi1, 2003.
SECTIONi13.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.
SECTIONi14.iiExcept as otherwise provided by this Act, this Act takes effect September 1, 2004.
Floor Amendment No. 1
Amend CSSBi1369 as follows:
(1)iiStrike SECTION 8 of the bill (page 6, lines 8-22, House committee printing) and renumber the SECTIONS of the bill accordingly.
(2)iiIn the recital to SECTION 9 of the bill (page 6, lines 24-25, House committee printing), strike "Sections 1575.211 and 1575.212" and substitute "Section 1575.211".
(3)iiIn SECTION 9 of the bill, strike added Section 1575.211, Insurance Code (page 6, line 26, through page 7, line 7, House committee printing).
(4)iiIn SECTION 9 of the bill, renumber added Section 1575.212, Insurance Code (page 7, lines 8-22, House committee printing), as Section 1575.211, Insurance Code.
(5)iiIn SECTION 9 of the bill, in renumbered added Section 1575.211(a), Insurance Code (page 7, line 10, House committee printing), strike "under Section 1575.211".
(6)iiIn SECTION 9 of the bill, in renumbered added Section 1575.211(b), Insurance Code (page 7, line 20, House committee printing), strike "under Section 1575.211".
(7)iiIn SECTION 10 of the bill, strike Subdivision (1) of that SECTION (page 7, lines 24-25, House committee printing), and substitute the following:
"(1)iiSections 1575.154 and 1575.204, Insurance Code, as effective June 1, 2003; and".
(8)iiStrike SECTION 12 of the bill (page 8, lines 9-12) and substitute the following:
SECTIONi12.iiThe changes in law made by this Act to Subsection (a), Section 1575.202 and Subsection (a), Section 1575.203, Insurance Code, take effect September 1, 2003.
Floor Amendment No. 2
Amend CSSB 1369 by inserting the following new SECTIONS, appropriately numbered, and renumbering SECTIONS of the bill accordingly:
SECTION ____. Subchapter F, Chapter 2054, Government Code, is amended by adding Section 2054.131 to read as follows:
4156 78th Legislature — Regular Session 82nd Day
Sec. 2054.131. ELECTRONIC BENEFITS ENROLLMENT AND ADMINISTRATION SYSTEM. (a) In this section, "work site benefits plan" means a plan or other arrangement to provide to officers, employees, or former officers or employees:
(1) insurance, including health, life, and disability insurance and health benefits plans;
(2) flexible spending accounts; or
(3) savings or retirement benefits.
(b) If the comptroller determines that a cost savings may be realized, the comptroller, through a private vendor selected under this section, may implement a project that establishes a common electronic infrastructure through which each state agency, including any retirement system created by statute or by the constitution, shall:
(1) require its work site benefits plan participants to electronically:
(A) enroll in any work site benefits plans provided to the person by the state or a state agency;
(B) add, change, or delete benefits;
(C) sign any payroll deduction agreements to implement a contribution made to a plan in which the participant enrolls;
(D) terminate participation in a voluntary plan;
(E) initiate account investment changes and withdrawals in a retirement plan;
(F) obtain information regarding plan benefits; and
(G) communicate with the plan administrator; and
(2) administer its work site benefits plans electronically by using the project to:
(A) enroll new plan participants and, when appropriate, terminate plan participation;
(B) generate eligibility and enrollment reports for plan participants;
(C) link plan administration with payroll administration to facilitate payroll deductions for a plan;
(D) facilitate single-source billing arrangements between the agency and a plan provider; and
(E) transmit and receive information regarding the plan.
(c) The electronic infrastructure established under Subsection (a) may include TexasOnline, the Internet, intranets, extranets, and wide area networks.
(d) If the comptroller implements an electronic infrastructure project under this section, the comptroller shall select and contract with a single private vendor to implement the project. The contract must require the application of the project to all state agencies without cost to the state until the project is initially implemented.
(e) The private vendor selected under Subsection (d) must offer existing information resources technology for use in the project that:
(1) will be available to all state agencies, including retirement systems;
(2) includes each agency's work site benefits plan participants;
Friday, May 30, 2003 SENATE JOURNAL 4157
(3) will use, to the extent possible, the department's information technology standards, including information security, privacy and disaster recovery, and Internet-based technology standards;
(4) includes applications and a supporting platform that are already developed and used in connection with the electronic enrollment of work site benefits plans offered by other multiple plan providers;
(5) is available for use with a wide variety of plan and benefit providers;
(6) can be easily modified to permit changes in benefits offered by the state or a state agency;
(7) provides a solution to overcome limitations caused by the incompatibility of different legacy systems used by different state agencies and plan providers;
(8) is available for use over the Internet through existing or new websites or portals; and
(9) is supported, to the extent necessary, by:
(A) laptop and desktop enrollment and administration capabilities; and
(B) a telephone call center.
SECTION ____. If the electronic infrastructure under Section 2054.131, Government Code, as added by this Act, is established, the comptroller as soon as reasonably possible shall develop a timetable and procedures under which each state agency shall implement the electronic infrastructure project for use by all work site benefits plan participants, including officers and employees and former officers and employees.
Floor Amendment No. 3
Amend CSSB 1369 by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill accordingly:
SECTION ____. Section 825.405, Government Code, is amended by amending Subsections (a) and (b) and adding Subsection (b-1) to read as follows:
(a) For members entitled to the minimum salary for certain school personnel
under Section 21.402, Education Code, and for members who would have been
entitled to the minimum salary for certain school personnel under former Section
16.056, Education Code, as that section existed on January 1, 1995, the employing
district shall pay the state's contribution on the portion of the member's salary that
exceeds the statutory minimum salary [or former statutory minimum, as applicable].
(b) For purposes of this section:
(1) [,] the statutory minimum salary for certain school personnel under
Section 21.402, Education Code, is the salary provided by that section [Section
21.402 or the former Sections 16.056 and 16.058, Education Code,] multiplied by the
cost of education adjustment applicable under Section 42.102, Education Code, to the
district in which the member is employed; and
(2) the statutory minimum salary for members who would have been entitled to the minimum salary for certain school personnel under former Section 16.056, Education Code, as that section existed on January 1, 1995, is a minimum salary computed in the same manner as the minimum salary for certain school personnel under Section 21.402, Education Code, multiplied by the percentage
4158 78th Legislature — Regular Session 82nd Day
(b-1) The retirement system shall:
(1) estimate:
(A) the aggregate annual minimum salary for members described by Subsection (b)(2), computed in the same manner as the minimum salary for certain school personnel under Section 21.402, Education Code; and
(B) the aggregate annual minimum salary for those members computed under former Section 16.056, Education Code, as that section existed on January 1, 1995; and
(2) compute the percentage amount by which the amount in Subsection (b-1)(1)(A) must be multiplied to equal the amount in Subsection (b-1)(1)(B).
SECTION ____. Section 825.405(h) and (i), Government Code, are repealed.
Floor Amendment No. 1 on Third Reading
Amend CSSB 1369 on third reading as follows:
(1) In added Section 2054.131, Government Code, as added by Amendment No. 2 by Delisi, in Subsection (b), between "electronic infrastructure through which each state agency" and the comma, insert "that elects to participate."
(2) In added Section 2054.131, Government Code, as added by Amendment No. 2 by Delisi, in Subsection (d), between "to all state agencies" and the "without cost", insert "that elect to participate".
(3) In SECTION __.02, as added by Amendment No. 2 by Delisi, strike "each state agency shall" and substitute "each state agency may".
(4) In Section 2054.131(b), Government Code, as amended by Amendment No. 3 by Delisi, by inserting "state-financed", between "any" and "retirement".
The amendments were read.
Senator Duncan moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1369 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Duncan, Chair; Bivins, Zaffirini, Ogden, and Williams.
CONFERENCE COMMITTEE ON HOUSE BILL 2020
Senator Duncan called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi2020 and moved that the request be granted.
The motion prevailed without objection.
Friday, May 30, 2003 SENATE JOURNAL 4159
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi2020 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Duncan, Chair; Armbrister, Estes, Bivins, and Barrientos.
MESSAGE FROM THE HOUSE
HOUSE CHAMBER
Austin, Texas
May 30, 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 CONCURRED IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES:
HB 236 (non-record vote)
HB 341 (non-record vote)
HB 705 (non-record vote)
HB 820 (non-record vote)
HB 849 (non-record vote)
HB 897 (non-record vote)
HB 942 (non-record vote)
HB 944 (non-record vote)
HB 1326 (non-record vote)
HB 1363 (non-record vote)
HB 1378 (House concurs by a vote of 144 yeas, 0 nays, 2 pnv)
HB 1406 (House concurs by a vote of 139 yeas, 1 nay, 2 pnv)
HB 1420 (House concurs by a vote of 135 yeas, 0 nays, 2 pnv)
HB 1440 (House concurs by a vote of 139 yeas, 0 nays, 2 pnv)
HB 1483 (non-record vote)
HB 1634 (House concurs by a vote of 138 yeas, 0 nays, 2 pnv)
HB 1649 (House concurs by a vote of 140 yeas, 0 nays, 2 pnv)
HB 1773 (non-record vote)
HB 1833 (non-record vote)
HB 1979 (non-record vote)
HB 1997 (non-record vote)
HB 2019 (non-record vote)
HB 2053 (non-record vote)
HB 2073 (House concurs by a vote of 142 yeas, 0 nays, 2 pnv)
HB 2153 (non-record vote)
4160 78th Legislature — Regular Session 82nd Day
HB 2188 (non-record vote)
HB 2189 (non-record vote)
HB 2212 (House concurs by a vote of 136 yeas, 0 nays, 2 pnv)
HB 2249 (House concurs by a vote of 145 yeas, 0 nays, 2 pnv)
HB 2308 (non-record vote)
HB 2350 (non-record vote)
HB 2379 (House concurs by a vote of 141 yeas, 0 nays, 2 pnv)
HB 2453 (non-record vote)
HB 2457 (House concurs by a vote of 139 yeas, 0 nays, 2 pnv)
HB 2485 (House concurs by a vote of 146 yeas, 0 nays, 2 pnv)
HB 2881 (non-record vote)
HB 2947 (House concurs by a vote of 145 yeas, 0 nays, 2 pnv)
HB 2964 (non-record vote)
HB 3034 (House concurs by a vote of 142 yeas, 0 nays, 2 pnv)
HB 3109 (House concurs by a vote of 144 yeas, 0 nays, 2 pnv)
HB 3318 (House concurs by a vote of 141 yeas, 0 nays, 2 pnv)
HB 3324 (House concurs by a vote of 143 yeas, 0 nays, 1 pnv)
HB 3378 (House concurs by a vote of 142 yeas, 0 nays, 4 pnv)
HB 3503 (non-record vote)
HB 3526 (House concurs by a vote of 140 yeas, 0 nays, 2 pnv)
HB 3565 (non-record vote)
HB 3592 (House concurs by a vote of 141 yeas, 0 nays, 2 pnv)
THE HOUSE HAS REFUSED TO CONCUR IN SENATE AMENDMENTS TO THE FOLLOWING MEASURES AND REQUESTS THE APPOINTMENT OF A CONFERENCE COMMITTEE TO ADJUST THE DIFFERENCES BETWEEN THE TWO HOUSES:
HBi2533
House Conferees: Brown, Betty - Chair/Casteel/Flynn/Lewis/Smith, Wayne/
Respectfully,
/s/Robert Haney, Chief Clerk
House of Representatives
SENATE BILL 1370 WITH HOUSE AMENDMENTS
Senator Duncan called SBi1370 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 1370 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to certain group benefit plans provided to certain governmental officers, employees, and retirees and their dependents.
Friday, May 30, 2003 SENATE JOURNAL 4161
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLEi1.iiTEXAS SCHOOL EMPLOYEES UNIFORM
GROUP HEALTH COVERAGE ACT AND
BENEFITS FOR SCHOOL EMPLOYEES
SECTIONi1.01.iiSection 2, Article 3.50-8, Insurance Code, is amended by adding Subsections (e), (f), and (g) to read as follows:
(e)iiA member of the professional staff of a district, charter school, or service center described by Subsection (a) of this section is not eligible to receive state funds under Subsection (a) of this section.
(f)iiFor purposes of this section, a member of the professional staff of a district, charter school, or service center described by Subsection (a) of this section has the meaning defined by rule by the trustee.
(g)iiAn employee is not eligible to receive a state contribution under this article until the 90th day after the date the employee is employed by an entity described by Section 1(2)(A) of this article.
SECTIONi1.02.iiNotwithstanding Article 3.50-8, Insurance Code, the state shall pay the state contribution for active employee health coverage or supplemental compensation authorized under Section 2, Article 3.50-8, Insurance Code, for the last month of state fiscal year 2005 not earlier than the first day of the first month of state fiscal year 2006.
SECTIONi1.03.iiEffective September 1, 2003, the comptroller of public accounts shall transfer $42 million from the Texas school employees uniform group coverage trust fund established under Section 8, Article 3.50-7, Insurance Code, to the retired school employees group insurance fund described by Subchapter G, Chapter 1575, Insurance Code, to compensate the retired school employees group insurance fund for money transferred from that fund under Section 4.01, Chapter 1187, Acts of the 77th Legislature, Regular Session, 2001.
ARTICLEi2.iiTEXAS EMPLOYEES GROUP BENEFITS ACT
SECTIONi2.01.iiSubdivisions (3), (9), and (11), Section 1551.003, Insurance Code, as effective Junei1, 2003, are amended to read as follows:
(3)ii"Basic coverage" means the group coverage plans determined by the board of trustees in which each eligible full-time employee and annuitant participates automatically unless participation is specifically waived.
(9)ii"Full-time employee" means an employee designated as a full-time
employee under Section 1551.319(c) or an employee designated by the employer as
working 40 [20] or more hours a week.
(11)ii"Part-time employee" means an employee designated by the employer
as working less than 40 [20] hours a week. For purposes of this chapter, an individual
described by Section 1551.101(e)(2) is considered a part-time employee.
SECTIONi2.02.iiSubsection (a), Section 1551.101, Insurance Code, as effective June 1, 2003, is amended to read as follows:
(a)iiAn elected or appointed officer or employee who performs service, other than as an independent contractor, for this state, including an institution of higher education, and who is described by this section is eligible to participate in the group benefits program as an employee on the date specified by Section 1551.1055.
4162 78th Legislature — Regular Session 82nd Day
SECTIONi2.03.iiSubsection (a), Section 1551.102, Insurance Code, as effective June 1, 2003, is amended to conform to Section 27, Chapter 1231, Acts of the 77th Legislature, Regular Session, 2001, and further amended to read as follows:
(a)iiAn individual who has at least a number of [three] years of service credit,
except as provided by Subsection (b)(2)(C) or Subsection (f), for which the individual
was eligible to participate in the group benefits program under Section 1551.101 or
who has at least five years of membership and five years of military service credited
in the Employees Retirement System of Texas and who retires in a manner described
by this section is eligible, subject to Section 1551.1055, to participate as an annuitant
in the group benefits program.
SECTIONi2.04.iiSection 1551.102, Insurance Code, as effective June 1, 2003, is amended by amending Subsections (b), (c), (d), (f), and (g) and adding Subsection (h) to read as follows:
(b)iiAn individual is eligible to participate in the group benefits program as
provided by Subsection (a) if [the individual]:
(1)iithe individual retires under the jurisdiction of the Employees Retirement System of Texas; and
(2)iithe individual:
(A)iireceives or is eligible to receive an annuity under Section
814.104(a)(2), [Subtitle B, D, or E, Title 8, Government Code, or Chapter 803,]
Government Code, and has [that is based on] at least 10 years of eligible service
credit;
(B)iireceives or is eligible to receive an annuity under Chapter 803 or Section 814.104(a)(1), Government Code, has at least 10 years of eligible service credit, and is at least 65 years of age; or
(C)iireceives or is eligible to receive an annuity that is based on [or]
eligibility under Section 814.002, [or] 814.102, 814.104(b), 814.107(a), 834.101, or
839.101, Government Code.
(c)iiAn individual is eligible to participate in the group benefits program as
provided by Subsection (a) if [the individual]:
(1)iithe individual retires under the jurisdiction of the Teacher Retirement System of Texas and has at least 10 years of eligible service credit, including not more than five years of military service credited in the Employees Retirement System of Texas, or has five years of eligible service credit and is the sole surviving spouse of military personnel who was killed in action;
(2)iithe individual:
(A)iihas accumulated eligible service credit in an amount so that the sum of the person's age and amount of service credit, including months of age and credit, equals or exceeds the number 80; or
(B)iiis at least 65 years of age [receives or is eligible to receive an
annuity under Subtitle C, Title 8, Government Code, or Chapter 803, Government
Code, that is based on at least 10 years of service credit]; and
(3)iithe individual was employed, as the last state employment before retirement, including employment by a public junior college, by a state agency whose employees are authorized to participate in the group benefits program.
Friday, May 30, 2003 SENATE JOURNAL 4163
(d)iiAn individual is eligible to participate in the group benefits program as provided by Subsection (a) if the individual:
(1)iiretires under the optional retirement program established by Chapter 830, Government Code, with at least 10 years of eligible service credit; and
(2)iireceives or is eligible to receive an annuity under that program and the individual:
(A)iiis at least 65 years of age, or would have been eligible to retire and
receive a service retirement annuity from the Teacher Retirement System of Texas or
the Employees Retirement System of Texas in an amount such that the sum of the
person's age and amount of service credit, including months of age and credit, equals
or exceeds the number 80 or would have been eligible to retire and receive a disability
retirement annuity from the Teacher Retirement System of Texas or the Employees
Retirement System of Texas, [based on at least 10 years of service credit] if the
individual had not elected to participate in the optional retirement program; or
(B)iiis disabled as determined by the Employees Retirement System of Texas based on at least 10 years of eligible service credit.
(f)iiAn individual is eligible to participate in the group benefits program as
provided by Subsection (a) if the individual is certified and qualified as disabled and
receives or is eligible to receive an annuity under Section 814.202, 814.207, 834.201,
or 839.201, Government Code [a retired officer or employee of a retirement system
described by Section 1551.111].
(g)iiAn individual is eligible to participate in the group benefits program as provided by Subsection (a) if the individual is at least 65 years of age and retires under a federal or state statutory retirement program not described by another provision of this section, to which an institution of higher education has made employer contributions, and the individual has met service requirements, age requirements, and other applicable requirements comparable to the requirements for retirement under the Teacher Retirement System of Texas, based on at least 10 years of service credit.
(h)iiA person eligible to participate and participating in the group benefits program as an annuitant on September 1, 2003, may continue to participate in the program as an annuitant if a lapse in coverage has not occurred.
SECTIONi2.05.iiSubsection (a), Section 1551.104, Insurance Code, as effective June 1, 2003, is amended to read as follows:
(a)iiSubject to Sections 1551.101 and 1551.102, each [Each] full-time employee
is covered automatically by the basic coverage plan for employees and each annuitant
is covered by the basic coverage plan for annuitants unless:
(1)iiparticipation is specifically waived; [or]
(2)iithe employee or annuitant is expelled from the program under Section 1551.351; or
(3)iieligibility is otherwise limited by this chapter.
SECTIONi2.06.iiSubchapter C, Chapter 1551, Insurance Code, as effective Junei1, 2003, is amended by adding Section 1551.1055 to read as follows:
4164 78th Legislature — Regular Session 82nd Day
Sec.i1551.1055.iiDATE ELIGIBILITY BEGINS; WAITING PERIOD. (a)iiExcept as provided by Subsections (c) and (d), eligibility under Section 1551.101 begins on the first day of the calendar month that begins after the 90th day after the date the employee performs services for a state agency or is qualified for and begins to hold elected or appointed office.
(b)iiExcept as provided by Subsection (c), eligibility under Section 1551.102, for an individual who does not retire at the end of the last month for which the individual is on the payroll of a state agency before retirement, begins on the first day of the calendar month that begins after the 90th day after the date the individual retires.
(c)iiThe waiting period established by Subsections (a) and (b) applies only to the determination of initial eligibility to participate in the group benefits program and does not apply to the determination of initial eligibility to participate in optional and voluntary insurance coverages under the group benefits program.
(d)iiThis subsection applies only to an employee of an institution of higher education or a dependent of the employee. Notwithstanding Subsection (a), eligibility under Section 1551.101 may not begin earlier than the first day that an employee performs services for an institution of higher education if any amount paid for premium incurred before the date specified under Subsection (a) for the employee and any dependents of the employee is paid from money not appropriated from the general revenue fund, in accordance with policies and procedures established by the governing body of the institution of higher education.
SECTIONi2.07.iiSubsection (a), Section 1551.109, Insurance Code, as effective June 1, 2003, is amended to read as follows:
(a)iiSubject to Section 1551.351, on application to the board of trustees and
arrangement for payment of contributions, an individual participating in the group
benefits program on August 31, 2003, as a current or [a] former member of a
governing body with administrative responsibility over a state agency created under a
statute of this state that has statewide jurisdiction and whose employees are covered
by this chapter or as a current or former member of the State Board of Education or
[described by Section 1551.101(c) or a former member of] the governing body of an
institution of higher education remains eligible for participation in a health benefit
plan offered under this chapter if a lapse in coverage [after the end of the former
member's term] has not occurred.
SECTIONi2.08.iiSubsection (b), Section 1551.111, Insurance Code, as effective June 1, 2003, is amended to read as follows:
(b)iiParticipation is limited to:
(1)iian officer or employee of either system who has been an officer or employee of either system following completion of the waiting period described by Section 1551.1055;
(2)iian eligible dependent of an officer or employee of either system described by Subdivision (1);
(3)iian individual who:
(A)iiwas an officer or employee of either system;
(B)iihas retired from either system, subject to Section 1551.1055;
Friday, May 30, 2003 SENATE JOURNAL 4165
(C)iireceives or is eligible to receive an annuity from either system or under Chapter 803, Government Code, based on at least 10 years of service credit and is at least 65 years of age; and
(D)iihas at least 10 [three] years of service creditiwith a state agency
whose employees are authorized to participate in the group benefits program; and
(4)iian eligible dependent of a retired officer or employee described by Subdivision (3).
SECTIONi2.09.iiSubsection (a), Section 1551.112, Insurance Code, as effective June 1, 2003, is amended to read as follows:
(a)iiAn individual may participate in the group benefits program as an annuitant, subject to Section 1551.1055, and may obtain coverage for the individual's dependents as any other participating annuitant if the individual:
(1)iibegan employment with, or became an officer of, the Texas Turnpike Authority within the three-year period preceding August 31, 1997;
(2)iiwas an officer or employee of the Texas Turnpike Authority on Augusti31, 1997;
(3)iibecame an officer or employee of the North Texas Tollway Authority on September 1, 1997; and
(4)iiretires or is eligible to retire with at least 10 years of service credit under the proportionate retirement program established by Chapter 803, Government Code, or under a public retirement system to which Chapter 803 applies and is at least 65 years of age.
SECTIONi2.10.iiSection 1551.319, Insurance Code, as effective June 1, 2003, is amended by adding Subsections (c), (d), and (e) to read as follows:
(c)iiThe superintendent of the Texas School for the Deaf and the superintendent of the Texas School for the Blind and Visually Impaired shall determine whether an educational professional employee under contract with the school under Section 30.024 or 30.055, Education Code, as applicable, is a full-time employee for purposes of this chapter.
(d)iiThe executive head of the Windham School District shall determine whether an educational professional employee of the school is a full-time employee for purposes of this chapter.
(e)iiThis section does not prohibit an institution of higher education from contributing, from money not appropriated from the general revenue fund, amounts in excess of the state contribution for a part-time employee described by Section 1551.101(e)(2).
SECTIONi2.11.iiSection 27, Chapter 1231, Acts of the 77th Legislature, Regular Session, 2001, is repealed.
SECTIONi2.12.iiSubsections (c) and (d), Section 1551.101, Insurance Code, as effective June 1, 2003, are repealed.
ARTICLEi3.iiTEXAS RETIRED SCHOOL EMPLOYEES
GROUP BENEFITS ACT
SECTION 3.01.iiSection 1575.002, Insurance Code, as effective Junei1, 2003, is amended to conform to Section 3.03, Chapter 1187, Acts of the 77th Legislature, Regular Session, 2001, and to conform more closely to the source law from which the section was derived, and further amended to read as follows:
4166 78th Legislature — Regular Session 82nd Day
Sec.i1575.002.iiGENERAL DEFINITIONS. In this chapter:
(1)ii"Active employee" means a contributing member of the Teacher
Retirement System of Texas [an employee as defined by Section 821.001,
Government Code,] who:
(A)iiis employed by a public school [a member of the system]; and
(B)iiis not entitled to coverage under a plan provided under Chapter 1551 or 1601.
(2)ii["Board of trustees" means the board of trustees of the Teacher
Retirement System of Texas.
[(3)]ii"Carrier" means an insurance company or hospital service corporation
authorized by the department under this code or another insurance law of this state to
provide any of the insurance coverages, benefits, or services provided by this chapter.
(3)i[(4)]ii"Fund" means the retired [Texas public] school employees group
insurance fund.
(4)i[(5)]ii"Group program" means the Texas Public School Employees Group
Insurance Program authorized by this chapter.
(5)i[(6)]ii"Health benefit plan" means a group insurance policy, contract, or
certificate, medical or hospital service agreement, membership or subscription
contract, salary continuation plan, or similar group arrangement to provide health care
services or to pay or reimburse expenses of health care services.
(6)ii"Public school" means:
(A)iia school district;
(B)iianother educational district whose employees are members of the Teacher Retirement System of Texas;
(C)iia regional education service center established under Chapter 8, Education Code; or
(D)iian open-enrollment charter school established under Subchapter D, Chapter 12, Education Code.
(7)ii"Trustee" ["System"] means the Teacher Retirement System of Texas.
SECTIONi3.02.iiSubsection (a), Section 1575.202, Insurance Code, is amended to read as follows:
(a)iiEach state fiscal year, the state shall contribute to the fund an amount equal
to one [0.5] percent of the salary of each active employee.
SECTIONi3.03.iiSubsection (a), Section 1575.203, Insurance Code, as effective June 1, 2003, is amended to read as follows:
(a)iiEach state fiscal year, each active employee shall, as a condition of
employment, contribute to the fund an amount equal to 0.5 [0.25] percent of the
employee's salary.
SECTIONi3.04.iiSection 1575.204, Insurance Code, as effective June 1, 2003, is amended to read as follows:
Sec.i1575.204. PUBLIC SCHOOL CONTRIBUTION [RATIO OF STATE
AND ACTIVE EMPLOYEE CONTRIBUTIONS]. Each state fiscal year, each public
school shall contribute to the fund the amount prescribed by the General
Appropriations Act, which may not be less than 0.25 percent or greater than 0.75
percent of the salary of each active employee of the public school. The public school
shall make the contributions on a monthly basis and as otherwise prescribed by the
Friday, May 30, 2003 SENATE JOURNAL 4167
ARTICLEi4.iiUNIFORM INSURANCE BENEFITS ACT
FOR EMPLOYEES OF
THE UNIVERSITY OF TEXAS SYSTEM AND
THE TEXAS A&M UNIVERSITY SYSTEM
SECTIONi4.01.iiSubsection (a), Section 1601.101, Insurance Code, as effective June 1, 2003, is amended to read as follows:
(a)iiAn individual who is employed by the governing board of a system, who performs service, other than as an independent contractor, for the system, and who is described by this section is eligible to participate as an employee in the uniform program on the date specified by Section 1601.1045.
SECTIONi4.02.iiSection 1601.102, Insurance Code, as effective June 1, 2003, is amended by amending Subsection (a) and adding Subsections (f) and (g) to read as follows:
(a)iiAn individual who retires in a manner described by this section and who meets the requirements of Subsection (f) is eligible to participate, subject to Section 1601.1045, as a retired employee in the uniform program.
(f)iiNotwithstanding Subsections (b)-(d), an individual is eligible to participate in the uniform program only if the individual:
(1)iihas at least 10 years of service credit and the sum of the person's age and amount of service credit, including months of age and credit, equals or exceeds the number 80; or
(2)iiis at least 65 years old and has at least 10 years of service credit.
(g)iiA person eligible to participate and participating in the uniform program as an annuitant on September 1, 2003, may continue to participate in the program as an annuitant if a lapse in coverage has not occurred.
SECTIONi4.03.iiSubchapter C, Chapter 1601, Insurance Code, as effective Junei1, 2003, is amended by adding Section 1601.1045 to read as follows:
Sec.i1601.1045.iiDATE ELIGIBILITY BEGINS; WAITING PERIOD. (a) Except as provided by Subsection (c) or (d), eligibility under Section 1601.101 begins on the first day of the calendar month that begins after the 90th day after the date the employee performs services for a system.
(b)iiExcept as provided by Subsection (c), eligibility under Section 1601.102, for an individual who does not retire at the end of the last month for which the individual is on the payroll of a system before retirement, begins on the first day of the calendar month that begins after the 90th day after the date the individual retires.
(c)iiThe waiting period established by Subsections (a) and (b) applies only to the determination of initial eligibility to participate in the group health benefits program and does not apply to the determination of initial eligibility to participate in optional coverages under the uniform program.
4168 78th Legislature — Regular Session 82nd Day
(d)iiNotwithstanding Subsection (a), eligibility under Section 1601.101 may not begin earlier than the first day that an employee performs services for a system if any amount paid for premium incurred before the date specified under Subsection (a) for the employee and any dependents of the employee is paid from money not appropriated from the general revenue fund, in accordance with policies and procedures established by the system.
SECTIONi4.04.iiSection 1601.201, Insurance Code, as effective June 1, 2003, is amended to read as follows:
Sec.i1601.201.iiPAYMENT FOR [OPTIONAL OR BASIC] COVERAGE.
(a)iiA system may not contribute more than the amounts specified by this section for
coverages provided under the uniform program.
(b)iiFor an employee designated by the system as working 40 or more hours a week, the system may contribute:
(1)iithe full cost of basic coverage for the employee; and
(2)iinot more than 50 percent of the cost of dependent coverage.
(c)iiFor an employee designated by the system as working less than 40 hours a week, including an individual employed by the system in a position that as a condition of employment requires the individual to be enrolled as a student in the system in graduate-level courses, the system, from money appropriated from the general revenue fund, may contribute:
(1)iinot more than 50 percent of the cost of basic coverage for the employee; and
(2)iinot more than 25 percent of the cost of dependent coverage.
(d)iiSubsection (c) does not prohibit a system from contributing, from money not
appropriated from the general revenue fund, amounts in excess of the amount
specified by that subsection for an individual employed by the system in a position
that as a condition of employment requires the individual to be enrolled as a student in
the system in graduate level courses [shall provide optional coverage at no cost to an
employee or retired employee if the cost of the employee's or retired employee's basic
coverage exceeds the amount appropriated by the legislature for an employee or
retired employee. For a participant who chooses the basic coverage rather than
optional coverages, a system may:
[(1)iifor an individual eligible to participate in the uniform program under
Section 1601.101, deduct from or reduce the monthly compensation of the participant;
or
[(2)iifor an individual eligible to participate in the uniform program under
Section 1601.102, require appropriate payment].
[(b)iiThe deduction or reduction under Subsection (a) may not exceed one-half of
the amount that exceeds the state's contribution, and the system shall pay any
difference.]
ARTICLEi5.iiEFFECTIVE DATE; GENERAL TRANSITION
SECTIONi5.01.iiTo the extent of any conflict, this Act prevails over another Act of the 78th Legislature, Regular Session, 2003, relating to nonsubstantive codifications of law or nonsubstantive additions to and corrections in enacted codes.
SECTIONi5.02.iiThis Act takes effect September 1, 2003.
Friday, May 30, 2003 SENATE JOURNAL 4169
Floor Amendment No. 1
Amend CSSBi1370 (House committee printing) as follows:
(1)iiStrike SECTION 1.01 of the bill (page 1, lines 8-21) and renumber subsequent SECTIONS of ARTICLE 1 of the bill accordingly.
(2)iiStrike SECTION 3.04 of the bill (page 12, line 24 through page 13, line 11) and substitute the following:
SECTIONi3.04.iiSection 1575.204, Insurance Code, as effective June 1, 2003, is repealed.
Floor Amendment No. 2
Amend CSSB 1370 as follows:
(1) In SECTION 2.01 of the bill, in amended Subdivision (9), Section 1551.003, Insurance Code, on page 2, line 22, between "1551.319(c)" and "or", insert "or (d)".
(2) In SECTION 2.03 of the bill, in amended Subsection (a), Section 1551.102,
Insurance Code, on page 3, line 12, strike "a number of [three]" and substitute "10".
Floor Amendment No. 3
Amend CSSBi1370 by inserting the following new ARTICLE, appropriately numbered, and renumbering subsequent ARTICLES and SECTIONS of the bill accordingly:
ARTICLE ____. ON-LINE STATE BENEFITS SYSTEM
SECTION __.01. Subchapter F, Chapter 2054, Government Code, is amended by adding Section 2054.131 to read as follows:
Sec.i2054.131.iiELECTRONIC BENEFITS ENROLLMENT AND ADMINISTRATION SYSTEM. (a) In this section, "work site benefits plan" means a plan or other arrangement to provide to officers, employees, or former officers or employees:
(1)iiinsurance, including health, life, and disability insurance and health benefits plans;
(2)iiflexible spending accounts; or
(3)iisavings or retirement benefits.
(b)iiIf the comptroller determines that a cost savings may be realized, the comptroller, through a private vendor selected under this section, may implement a project that establishes a common electronic infrastructure through which each state agency, including any retirement system created by statute or by the constitution, shall:
(1)iirequire its work site benefits plan participants to electronically:
(A)iienroll in any work site benefits plans provided to the person by the state or a state agency;
(B)iiadd, change, or delete benefits;
(C)iisign any payroll deduction agreements to implement a contribution made to a plan in which the participant enrolls;
(D)iiterminate participation in a voluntary plan;
(E)iiinitiate account investment changes and withdrawals in a retirement plan;
4170 78th Legislature — Regular Session 82nd Day
(F)iiobtain information regarding plan benefits; and
(G)iicommunicate with the plan administrator; and
(2)iiadminister its work site benefits plans electronically by using the project to:
(A)iienroll new plan participants and, when appropriate, terminate plan participation;
(B)iigenerate eligibility and enrollment reports for plan participants;
(C)iilink plan administration with payroll administration to facilitate payroll deductions for a plan;
(D)iifacilitate single-source billing arrangements between the agency and a plan provider; and
(E)iitransmit and receive information regarding the plan.
(c)iiThe electronic infrastructure established under Subsection (a) may include TexasOnline, the Internet, intranets, extranets, and wide area networks.
(d)iiIf the comptroller implements an electronic infrastructure project under this section, the comptroller shall select and contract with a single private vendor to implement the project. The contract must require the application of the project to all state agencies without cost to the state until the project is initially implemented.
(e)iiThe private vendor selected under Subsection (d) must offer existing information resources technology for use in the project that:
(1)iiwill be available to all state agencies, including retirement systems;
(2)iiincludes each agency's work site benefits plan participants;
(3)iiwill use, to the extent possible, the department's information technology standards, including information security, privacy and disaster recovery, and Internet-based technology standards;
(4)iiincludes applications and a supporting platform that are already developed and used in connection with the electronic enrollment of work site benefits plans offered by other multiple plan providers;
(5)iiis available for use with a wide variety of plan and benefit providers;
(6)iican be easily modified to permit changes in benefits offered by the state or a state agency;
(7)iiprovides a solution to overcome limitations caused by the incompatibility of different legacy systems used by different state agencies and plan providers;
(8)iiis available for use over the Internet through existing or new websites or portals; and
(9)iiis supported, to the extent necessary, by:
(A) laptop and desktop enrollment and administration capabilities; and
(B)iia telephone call center.
SECTION __.02. If the electronic infrastructure under Section 2054.131, Government Code, as added by this article, is established, the comptroller as soon as reasonably possible shall develop a timetable and procedures under which each state agency shall implement the electronic infrastructure project for use by all work site benefits plan participants, including officers and employees and former officers and employees.
Friday, May 30, 2003 SENATE JOURNAL 4171
Floor Amendment No. 4
Amend CSSB 1370 (House committee printing) by adding the following appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS of the bill accordingly:
SECTION ____. (a) Subchapter C, Chapter 1551, Insurance Code, as effective June 1, 2003, is amended by adding Section 1551.1021 to read as follows:
Sec. 1551.1021. PARTICIPATION ELIGIBILITY: CERTAIN FACULTY OF INSTITUTIONS OF HIGHER EDUCATION. (a) An adjunct faculty member at a public institution of higher education is eligible to participate in the group benefits program as an employee if the faculty member:
(1) receives compensation for services rendered to a public institution of higher education as an adjunct faculty member;
(2) has been employed as a faculty member by the same public institution of higher education and has taught at least one course in each regular fall and spring semester at the public institution of higher education in each of the preceding three academic years; and
(3) is under contract or is scheduled to teach at least 12 semester credit hours in the academic year of coverage or, if the person is also employed by the public institution of higher education to perform nonteaching duties, is under contract or is scheduled to teach at least six semester credit hours in the academic year of coverage and has been approved by the public institution of higher education to participate in the group benefits program.
(b) From money appropriated from a fund other than the general revenue fund or from money available from local sources, a public institution of higher education may, for an adjunct faculty member eligible to receive benefits under this section, contribute:
(1) not more than 50 percent of the cost of basic coverage for the employee; and
(2) not more than 25 percent of the cost of dependent coverage.
(c) Subsection (b) does not prohibit a public institution of higher education from contributing, from money other than money appropriated from the general revenue fund, amounts that exceed the amount specified in Subsection (b) to provide coverage for a person employed by a public institution of higher education who meets the criteria for eligibility under Subsection (a).
(b) The board of trustees of the Employees Retirement System of Texas shall include coverage under Section 1551.114, Insurance Code, as added by this section, in an insurance policy or contract or in an evidence of coverage delivered, issued for delivery, or renewed on or after January 1, 2004. The board of trustees may include coverage under Section 1551.114, Insurance Code, as added by this section, in an insurance policy or contract or in an evidence of coverage delivered, issued for delivery, or renewed before January 1, 2004, if the board of trustees determines that coverage may be reasonably included.
4172 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 5
Amend CSSB 1370 by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill accordingly:
SECTION ____. Section 825.405, Government Code, is amended by amending Subsections (a) and (b) and adding Subsection (b-1) to read as follows:
(a) For members entitled to the minimum salary for certain school personnel
under Section 21.402, Education Code, and for members who would have been
entitled to the minimum salary for certain school personnel under former Section
16.056, Education Code, as that section existed on January 1, 1995, the employing
district shall pay the state's contribution on the portion of the member's salary that
exceeds the statutory minimum salary [or former statutory minimum, as applicable].
(b) For purposes of this section:
(1) [,] the statutory minimum salary for certain school personnel under
Section 21.402, Education Code, is the salary provided by that section [Section
21.402 or the former Sections 16.056 and 16.058, Education Code,] multiplied by the
cost of education adjustment applicable under Section 42.102, Education Code, to the
district in which the member is employed; and
(2) the statutory minimum salary for members who would have been entitled to the minimum salary for certain school personnel under former Section 16.056, Education Code, as that section existed on January 1, 1995, is a minimum salary computed in the same manner as the minimum salary for certain school personnel under Section 21.402, Education Code, multiplied by the percentage amount computed under Subsection (b-1)(2) and by the cost of education adjustment applicable under Section 42.102, Education Code, to the district in which the member is employed.
(b-1) The retirement system shall:
(1) estimate:
(A) the aggregate annual minimum salary for members described by Subsection (b)(2), computed in the same manner as the minimum salary for certain school personnel under Section 21.402, Education Code; and
(B) the aggregate annual minimum salary for those members computed under former Section 16.056, Education Code, as that section existed on January 1, 1995; and
(2) compute the percentage amount by which the amount in Subsection (b-1)(1)(A) must be multiplied to equal the amount in Subsection (b-1)(1)(B).
SECTION ____. Sections 825.405(h) and (i), Government Code, are repealed.
Floor Amendment No. 6
Amend CSSB 1370 (House committee printing) by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill accordingly:
SECTION ____. Section 2, Article 3.50-8, Insurance Code, is amended by adding Subsection (a-1) to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 4173
(a-1) Notwithstanding any other provision of this article or other law, on and 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.
SECTION ____. 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.
Floor Amendment No. 7
Amend CSSB 1370 as follows:
(1) In ARTICLE 2 of the bill, insert the following new SECTION, appropriately numbered:
SECTION 2.__. Section 1551.006, Insurance Code, as effective June 1, 2003, is amended by adding Subsection (c) to read as follows:
(c) Notwithstanding Subsection (b), The Texas A&M University System, including the Texas Veterinary Medical Laboratory, participates in the group benefits program if, not later than November 1, 2004, the system notifies the board of trustees of the system's election to participate. If notice is provided as required by this subsection, the employees and annuitants of the system, including the veterinary medical laboratory, and the dependents of those employees and annuitants, participate in the group benefits program effective not later than September 1, 2005. Notwithstanding any other provision of this subsection, the Texas A&M University System may elect to participate in the group benefits program under this subsection only if the Employees Retirement System determines pursuant to the actuarial study required by H.B. No. 1, Acts of the 78th Legislature, 2003, that participation under this subsection will not result in additional cost to the state.
(2) In ARTICLE 4 of the bill, insert the following new SECTION, appropriately numbered:
SECTION 4.__. Subchapter A, Chapter 1601, Insurance Code, as effective June 1, 2003, is amended by adding Section 1601.011, Insurance Code, to read as follows:
Sec. 1601.011. PARTICIPATION OF THE TEXAS A&M UNIVERSITY SYSTEM. Notwithstanding any other provision of this chapter, if The Texas A&M University System elects to participate in the group benefits program under Section 1551.006(c), that system, including the Texas Veterinary Medical Laboratory, does not participate in a uniform program established under this chapter, effective on the date participation in the group benefits program under Chapter 1551 begins.
(3) Renumber SECTIONS of the bill appropriately.
4174 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 1 on Third Reading
Amend CSSB 1370 on third reading as follows:
(1) In added Section 2054.131, Government Code, as added by Amendment No. 2 by Delisi, in Subsection (b), between "electronic infrastructure through which each state agency" and the comma, insert "that elects to participate."
(2) In added Section 2054.131, Government Code, as added by Amendment No. 2 by Delisi, in Subsection (d), between "to all state agencies" and the "without cost", insert "that elect to participate".
(3) In SECTION __.02, as added by Amendment No. 2 by Delisi, strike "each state agency shall" and substitute "each state agency may".
(4) In Section 2054.131(b), Government Code, as amended by Amendment No. 3 by Delisi, by inserting "state-financed", between "any" and "retirement".
Floor Amendment No. 2 on Third Reading
Amend CSSB 1370 on third reading as follows:
In Section 2.04 of the bill, amended Section 1551.102(f), Insurance Code, by inserting "824.302", between "814.207", and "834.201".
The amendments were read.
Senator Duncan moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 1370 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Duncan, Chair; Bivins, Zaffirini, Ogden, and Williams.
CONFERENCE COMMITTEE ON
SENATE BILL 1252 DISCHARGED
On motion of Senator Armbrister and by unanimous consent, the Senate conferees on SBi1252 were discharged.
Question — Shall the Senate concur in the House amendments to SBi1252?
On motion of Senator Armbrister and by unanimous consent, the Senate concurred in the House amendments to SBi1252 by a viva voce vote.
(Senator Wentworth in Chair)
CONFERENCE COMMITTEE ON HOUSE BILL 2455
Senator Nelson called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi2455 and moved that the request be granted.
The motion prevailed without objection.
Friday, May 30, 2003 SENATE JOURNAL 4175
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi2455 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Nelson, Chair; Ellis, Jackson, Ogden, and Armbrister.
CONFERENCE COMMITTEE ON HOUSE BILL 1082
Senator Staples called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi1082 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi1082 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Staples, Chair; Brimer, Hinojosa, Harris, and Lucio.
CONFERENCE COMMITTEE ON HOUSE BILL 411
Senator Ellis called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi411 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi411 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Ellis, Chair; Shapiro, Shapleigh, Ogden, and Staples.
CONFERENCE COMMITTEE ON HOUSE BILL 3042
Senator Ellis called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi3042 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi3042 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Ellis, Chair; Armbrister, Bivins, Wentworth, and Brimer.
4176 78th Legislature — Regular Session 82nd Day
CONFERENCE COMMITTEE ON HOUSE BILL 2424
Senator Armbrister called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi2424 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi2424 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Armbrister, Chair; Brimer, Staples, Ellis, and Bivins.
SENATE BILL 270 WITH HOUSE AMENDMENTS
Senator Jackson called SBi270 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 270 by substituting in lieu thereof the following:
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas Lottery Commission.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 466.014, Government Code, is amended by adding Subsection (d) to read as follows:
(d)iiA contract between the division and a lottery operator under Subsection (b) must contain a provision allowing the contract to be terminated without penalty if the division is abolished.
SECTIONi2.iiSection 466.022(b), Government Code, is amended to read as follows:
(b)iiIn addition to commission records excepted from disclosure under Chapter 552, the following information is confidential and is exempt from disclosure:
(1)iisecurity plans and procedures of the commission designed to ensure the integrity and security of the operation of the lottery;
(2)iiinformation of a nature that is designed to ensure the integrity and
security of the selection of winning tickets or numbers in the lottery, other than
information describing the general procedures for selecting winning tickets or
numbers; [and]
(3)iithe street address and telephone number of a prize winner, if the prize winner has not consented to the release of the information; and
(4)iipersonal information identifying an individual collected as part of a player informational database.
SECTIONi3.iiSubchapter B, Chapter 466, Government Code, is amended by adding Section 466.026 to read as follows:
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Sec.i466.026.iiCOMPREHENSIVE BUSINESS PLAN. (a) The commission shall develop a comprehensive business plan to guide the commission's major initiatives. The plan must at a minimum include:
(1)iia description of each commission program and project;
(2)iikey management information;
(3)iiaccurate financial data; and
(4)iia detailed financial management plan.
(b)iiThe commission shall at least annually review the comprehensive business plan to assess the overall performance and value of each program and project.
SECTIONi4.iiSubchapter B, Chapter 466, Government Code, is amended by adding Section 466.0245 to read as follows:
Sec.i466.0245.iiPROHIBITED GAMING MACHINES; DUTIES OF COMPTROLLER. (a) In this section, "prohibited gaming machine" means a machine that is:
(1)iiprohibited under this chapter; or
(2)iia gambling device, as defined by Section 47.01, Penal Code, that is possessed, used, exhibited, or displayed in a manner that violates Chapter 47, Penal Code.
(b)iiThe comptroller or an authorized representative of the comptroller may seal a prohibited gaming machine in a manner that prevents the full operation of the machine.
(c)iiThe comptroller may assess a penalty of not less than $500 and not more than $10,000 against a person who exhibits, displays, or provides to another a prohibited gaming machine.
(d)iiNotwithstanding the penalty provided by other law, an offense under Section 2153.355(a)(5), (6), or (7), Occupations Code, or under Section 2153.361, Occupations Code, is a Class A misdemeanor if the offense involves a prohibited gaming machine.
(e)iiIn addition to the amounts allocated under Section 466.355(b), $5 million is allocated from the state lottery account in each fiscal biennium to the comptroller to enforce this section.
SECTIONi5.iiSubchapter C, Chapter 466, Government Code, is amended by adding Section 466.1005 to read as follows:
Sec.i466.1005.iiPROCUREMENTS.ii(a) The commission may purchase or lease facilities, goods, and services and make any purchases, leases, or contracts necessary for carrying out the purposes of this chapter.
(b)iiThe commission shall review and must approve all major procurements as provided by commission rule. The commission by rule shall establish a procedure to determine what constitutes a major procurement based on the cumulative value of a contract and other relevant factors.
(c)iiThe commission may delegate to the executive director the authority to approve procurements other than major procurements.
SECTIONi6.iiSections 466.101(a) and (b), Government Code, are amended to read as follows:
4178 78th Legislature — Regular Session 82nd Day
(a)iiThe commission and executive director may establish procedures for the purchase or lease of facilities, goods, and services and make any purchases, leases, or contracts that are necessary for carrying out the purposes of this chapter. The procedures must, as determined feasible and appropriate by the commission and executive director, promote competition to the maximum extent possible.
(b)iiIn all procurement decisions, the commission and executive director shall take into account the particularly sensitive nature of the lottery and shall act to promote and ensure integrity, security, honesty, and fairness in the operation and administration of the lottery and the objective of producing revenues for the state treasury.
SECTIONi7.iiSubchapter C, Chapter 466, Government Code, is amended by adding Section 466.111 to read as follows:
Sec.i466.111.iiSALE OF LOTTERY PROMOTIONAL MERCHANDISE. (a) The commission may make available for sale to the public lottery promotional merchandise to market and promote ticket sales.
(b)iiThe executive director shall propose rules to be adopted by the commission regarding sales of lottery promotional merchandise, including the method for pricing, advertising, purchasing, and selling lottery promotional merchandise.
(c)iiProceeds from the sale of lottery promotional merchandise, less the cost of advertising the sale and any related expenses, shall be deposited to the credit of the general revenue fund.
SECTIONi8.iiSection 466.151, Government Code, is amended by amending Subsection (d) and adding Subsection (f) to read as follows:
(d)iiThe director may license as a sales agent each person the director believes
will best serve the public convenience. The director may not issue a license to a
person to engage in business exclusively as a sales agent. A license may not be
transferred or assigned to any other person [or location].
(f)iiOn application by a sales agent the director may amend the sales agent's license to change the location of the sales agency, if the proposed location complies with this chapter. The application must be on a form prescribed by the director and be accompanied by a fee in an amount determined by the director to be at least sufficient to cover the costs incurred by the division for processing the license amendment. The sales agent must certify to the director that the proposed location complies with the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.).
SECTIONi9.iiSection 466.155(a), Government Code, is amended to read as follows:
(a)iiAfter a hearing, the director shall deny an application for a license or the commission shall suspend or revoke a license if the director or commission, as applicable, finds that the applicant or sales agent:
(1)iiis an individual who:
(A)iihas been convicted of a felony, criminal fraud, gambling or a gambling-related offense, or a misdemeanor involving moral turpitude, if less than 10 years has elapsed since the termination of the sentence, parole, mandatory supervision, or probation served for the offense;
(B)iiis or has been a professional gambler;
(C)iiis married to an individual:
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(i)iidescribed in Paragraph (A) or (B); or
(ii)iiwho is currently delinquent in the payment of any state tax;
(D)iiis an officer or employee of the commission or a lottery operator; or
(E)iiis a spouse, child, brother, sister, or parent residing as a member of the same household in the principal place of residence of a person described by Paragraph (D);
(2)iiis not an individual, and an individual described in Subdivision (1):
(A)iiis an officer or director of the applicant or sales agent;
(B)iiholds more than 10 percent of the stock in the applicant or sales agent;
(C)iiholds an equitable interest greater than 10 percent in the applicant or sales agent;
(D)iiis a creditor of the applicant or sales agent who holds more than 10 percent of the applicant's or sales agent's outstanding debt;
(E)iiis the owner or lessee of a business that the applicant or sales agent conducts or through which the applicant will conduct a ticket sales agency;
(F)iishares or will share in the profits, other than stock dividends, of the applicant or sales agent; or
(G)iiparticipates in managing the affairs of the applicant or sales agent;
(3)iihas been finally determined to be:
(A)iidelinquent in the payment of a tax or other money collected by the comptroller, the Texas Workforce Commission, or the Texas Alcoholic Beverage Commission;
(B)iiin default on a loan made under Chapter 52, Education Code; or
(C)iiin default on a loan guaranteed under Chapter 57, Education Code;
(4)iiis a person whose location for the sales agency is:
(A)iia location licensed for games of bingo under Chapter 2001, Occupations Code;
(B)iion land that is owned by:
(i)iithis state; or
(ii)iia political subdivision of this state and on which is located a public primary or secondary school, an institution of higher education, or an agency of the state; or
(C)iia location:
(i)iiin a facility that shares a common roof or common foundation with a location at which a gambling device, as defined by Section 47.01, Penal Code, is operated or located; or
(ii)iiwithin 150 feet of the common roof or common foundation
described by Subparagraph (i) [a location for which a person holds a wine and beer
retailer's permit, mixed beverage permit, mixed beverage late hours permit, private
club registration permit, or private club late hours permit issued under Chapter 25, 28,
29, 32, or 33, Alcoholic Beverage Code]; or
(5)iihas violated this chapter or a rule adopted under this chapter.
SECTIONi10.iiSection 466.158, Government Code, is amended by adding Subsections (d), (e), and (f) to read as follows:
4180 78th Legislature — Regular Session 82nd Day
(d)iiIn making a determination whether to renew a license, the commission shall consider the compliance history of a license holder. The commission shall adopt rules to govern the specific areas of compliance history that may be considered in the renewal determination.
(e)iiAfter an opportunity for a hearing, the commission may deny an application for renewal of a license if the applicant's compliance history reveals conduct that is inconsistent with this chapter or the commission's rules adopted under this chapter in the specific areas considered by the commission in accordance with the rules adopted under Subsection (d).
(f)iiThe commission by rule may adopt a system under which licenses expire on various dates during the year. For the year in which the license expiration date is changed, the commission shall prorate license fees on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable.
SECTIONi11.iiSection 466.160(a), Government Code, is amended to read as follows:
(a)iiThe commission may suspend a sales agent's license summarily without notice or hearing if the commission finds that the action is necessary to maintain the integrity, security, honesty, or fairness of the operation or administration of the lottery or to prevent financial loss to the state and:
(1)iithe sales agent fails to deposit money received from ticket sales under Section 466.351;
(2)iian event occurs that would render the sales agent ineligible for a license under Section 466.155;
(3)iithe sales agent refuses to permit the executive director, the director, the
commission, or the state auditor to examine the agent's books, records, papers, or
other objects under Section 466.017(b); [or]
(4)iithe executive director learns the sales agent has failed to disclose information that would, if disclosed, render the sales agent ineligible for a license under Section 466.155; or
(5)iithe sales agent fails on request to provide a complete legible set of fingerprints of a person required to be named in a license application.
SECTIONi12.iiSection 466.202(b), Government Code, is amended to read as follows:
(b)iiThe [executive] director may deny an application for a license or the
commission may summarily suspend, suspend, or revoke a license if the applicant or
sales agent fails on request to provide a complete legible set of fingerprints of a person
required to be named in a license application.
SECTIONi13.iiSection 466.353, Government Code, is amended by adding Subsection (c) to read as follows:
(c)iiThe failure of a sales agent to notify the director that an individual has ceased to be an officer, director, or owner of a sales agent if that notification is required by Section 466.153 does not relieve the former officer, director, or owner from liability under Subsection (b), and the individual is liable under Subsection (b) as if the
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SECTIONi14.iiSection 466.355, Government Code, is amended by adding Subsections (d) and (e) to read as follows:
(d)iiIn addition to the amounts allocated by Subsection (b), $5 million is allocated from the state lottery account in each fiscal biennium to the criminal justice division of the governor's office to provide grants to assist local governments in the prosecution of offenses involving gambling devices as defined by Section 47.01, Penal Code.
(e)iiIn addition to the amounts allocated by Subsection (b), $500,000 is allocated from the state lottery account in each fiscal biennium to the comptroller to provide grants to residents of this state to pay the costs of attending a public junior college, public technical institute, or public state college, as those terms are defined by Section 61.003, Education Code. The comptroller by rule shall provide for the administration of the grants as the comptroller determines appropriate to effectively support deserving students pursuing a post-secondary education. The rules must provide for:
(1)iieligibility of a person for a grant;
(2)iiacademic performance requirements for continued eligibility for a grant; and
(3)iithe amount of a grant.
SECTIONi15.iiSection 466.402, Government Code, is amended by amending Subsection (d) and adding Subsection (e) to read as follows:
(d)iiA person claiming a lottery prize shall disclose to the commission the person's name and social security number or employer identification number. If the person claiming the prize is a legal entity, the person shall disclose all legal and beneficial interests in the entity to the commission by sworn statement in accordance with commission rules. The name of any person who claims a prize or who is identified as having a legal or beneficial interest in a legal entity that claims a prize is public information. A person's name is confidential until a ticket is validated.
(e)iiThe state is discharged of all further liability on the payment of a prize under Section 466.403, 466.404, 466.406, 466.407, or 466.410 or this section or under any additional procedures established by rule.
SECTIONi16.iiSection 466.405(e), Government Code, is amended to read as follows:
(e)iiIn this section:
(1)ii"Custodian" and[, "adult," "bank," "custodian,"] "guardian[,]" ["member
of a minor's family," and "minor"] have the meanings assigned by Section 141.002,
Property Code.
(2)ii"Member of a minor's family" means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of whole or half blood or by adoption.
(3)ii"Minor" means an individual who is younger than 18 years of age.
SECTIONi17.iiChapter 466, Government Code, is amended by adding Subchapter J to read as follows:
4182 78th Legislature — Regular Session 82nd Day
SUBCHAPTER J. PARTICIPATION IN MULTIJURISDICTION
LOTTERY GAME
Sec.i466.451.iiMULTIJURISDICTION AGREEMENT AUTHORIZED. The commission may enter into a written agreement with the appropriate officials of one or more other states or other jurisdictions, including foreign countries, to participate in the operation, marketing, and promotion of a multijurisdiction lottery game or games. The commission may adopt rules relating to a multijurisdiction lottery game or games.
Sec.i466.452.iiREVENUE FROM MULTIJURISDICTION LOTTERY. (a) Except as provided by this section, revenue received from the sale of tickets in this state for a multijurisdiction lottery game is subject to Subchapter H.
(b)iiThe commission may deposit a portion of the revenue received from the sale of multijurisdiction lottery game tickets in this state into a fund shared with other parties to an agreement under this subchapter for the payment of prizes awarded in multijurisdiction lottery games in which the commission participates. The commission may retain that revenue in the fund for as long as necessary to pay prizes claimed during the period designated for claiming a prize in the multijurisdiction lottery game.
Sec.i466.453.iiPAYMENT OF COSTS AUTHORIZED. The commission may share in the payment of costs associated with participating in multijurisdiction lottery games.
SECTIONi18.iiSection 467.002, Government Code, is amended to read as follows:
Sec.i467.002.iiAPPLICATION OF SUNSET ACT. The commission is subject to
Chapter 325 (Texas Sunset Act). Unless continued in existence as provided by that
chapter, the commission is abolished and this chapter, Chapter 466, and Chapter 2001,
Occupations Code, expire [Act expires] September 1, 2015 [2003].
SECTIONi19.iiSection 467.021(b), Government Code, is amended to read as follows:
(b)iiAppointments [In making appointments] to the commission shall be made
without[, the governor shall strive to achieve representation by all the population
groups of the state with] regard to the [economic status, sex,] race, color, disability,
sex, religion, age, or national origin of the appointees [and ethnicity].
SECTIONi20.iiSection 467.024, Government Code, is amended by adding Subsections (c) and (d) to read as follows:
(c)iiA person may not be a commission 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 bingo or lottery; or
(2)iithe person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of bingo or lottery.
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(d)iiA person may not act as the general counsel to the commission if the person is required to register as a lobbyist under Chapter 305 because of the person's activities for compensation on behalf of a profession related to the operation of the commission.
SECTIONi21.iiSubchapter B, Chapter 467, Government Code, is amended by adding Section 467.0255 to read as follows:
Sec.i467.0255.iiTRAINING. (a) A person who is appointed to and qualifies for office as a member of the commission may not vote, deliberate, or be counted as a member in attendance at a meeting of the commission until the person completes a training program that complies with this section.
(b)iiThe training program must provide the person with information regarding:
(1)iithe legislation that created the commission;
(2)iithe programs operated by the commission;
(3)iithe role and functions of the commission;
(4)iithe rules of the commission, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5)iithe current budget for the commission;
(6)iithe results of the most recent formal audit of the commission;
(7)iithe requirements of:
(A)iithe open meetings law, Chapter 551;
(B)iithe public information law, Chapter 552;
(C)iithe administrative procedure law, Chapter 2001; and
(D)iiother laws relating to public officials, including conflict-of-interest laws; and
(8)iiany applicable ethics policies adopted by the commission or the Texas Ethics Commission.
(c)iiA person appointed to the commission 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.
SECTIONi22.iiSections 467.026(a) and (c), Government Code, are amended to read as follows:
(a)iiIt is a ground for removal from the [The governor may remove a]
commission that a member [if the member]:
(1)iidoes not have at the time of taking office [appointment] the
qualifications required by Sections 467.023 and 467.024 [for appointment to the
commission];
(2)iidoes not maintain during service on the commission the qualifications
required by Sections 467.023 and 467.024 [for appointment to the commission];
(3)iiis ineligible for membership under [violates a prohibition established by]
Section 467.023, 467.024, or 467.025;
(4)iicannot discharge the member's duties for a substantial part of the
member's term [for which the member is appointed] because of illness or disability; or
(5)iiis absent from more than half of the regularly scheduled commission
meetings that the member is eligible to attend during a calendar year without an
excuse approved [unless the absence is excused] by majority vote of the commission.
4184 78th Legislature — Regular Session 82nd Day
(c)iiIf the executive director [presiding officer] has knowledge that a potential
ground for removal exists, the executive director [presiding officer] shall notify the
presiding officer of the commission 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 commission, who
shall then notify the governor and the attorney general that a potential ground for
removal exists.
SECTIONi23.iiSection 467.032, Government Code, is amended to read as follows:
Sec.i467.032.iiEXECUTIVE DIRECTOR AND BINGO OPERATIONS DIRECTOR. (a) The commission shall employ:
(1)iian executive director to administer this chapter and Chapter 466; and
(2)iia director of bingo operations to administer this chapter with regard to the bingo division and Chapter 2001, Occupations Code.
(b)iiThe executive director and the bingo operations director serve [holds office]
at the will of the commission and are [is] specifically exempted from Chapter 654.
(c)iiThe bingo operations director has broad authority and shall exercise strict
control and close supervision over all bingo games conducted in this state to promote
and ensure integrity, security, honesty, and fairness in the administration and
regulation of bingo [executive director or an acting executive director shall be
appointed by the commission no later than November 1, 1993].
(d)iiThe bingo operations director may contract with or employ a person to perform a function, activity, or service in connection with the administration and regulation of bingo.
SECTIONi24.iiSection 467.033, Government Code, is amended to read as follows:
Sec.i467.033.iiDIVISION DIRECTORS. The executive director shall employ a director to oversee each division other than the bingo division. A division director employed under this section serves at the will of the executive director and is specifically exempted from Chapter 654.
SECTIONi25.iiSection 467.034, Government Code, is amended to read as follows:
Sec.i467.034.iiEMPLOYEES. (a) The executive director shall employ other
personnel, other than the bingo division personnel, necessary to administer the laws
under the commission's jurisdiction. Commission personnel employed under this
subsection [employees] serve at the will of the executive director.
(b)iiThe bingo operations director shall employ personnel to administer Chapter 2001, Occupations Code. The personnel serve at the will of the bingo operations director.
(c)iiThe executive director shall employ the personnel that perform services for both the lottery and bingo divisions. The personnel serve at the will of the executive director.
SECTIONi26.iiSection 467.035(a), Government Code, is amended to read as follows:
(a)iiThe commission may not employ or continue to employ a person who:
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(1)iiowns a financial interest in:
(A)i[(1)]iia bingo commercial lessor, bingo distributor, or bingo
manufacturer; or
(B)i[(2)]iia lottery sales agency or a lottery operator; or
(2)iiwould be denied a license as a sales agent under Section 466.155.
SECTIONi27.iiSubchapter B, Chapter 467, Government Code, is amended by adding Sections 467.037-467.040 to read as follows:
Sec.i467.037.iiDIVISION OF RESPONSIBILITIES. The commission shall develop and implement policies that clearly separate the policymaking responsibilities of the commission and the management responsibilities of the executive director and the staff of the commission.
Sec.i467.038.iiEQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (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 commission 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 commission'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.i467.039.iiREQUIREMENTS AND STANDARDS OF CONDUCT INFORMATION. The executive director or the executive director's designee shall provide to members of the commission and to commission 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.i467.040.iiSTATE EMPLOYEE INCENTIVE PROGRAM INFORMATION. The executive director or the executive director's designee shall provide to commission employees information and training on the benefits and methods of participation in the state employee incentive program.
SECTIONi28.iiSubchapter C, Chapter 467, Government Code, is amended by adding Section 467.1015 to read as follows:
Sec.i467.1015.iiCOMMISSION EMPLOYEES. The commission may employ other personnel as necessary, including executive assistants, to perform the duties of the commission. A commission employee is exempt from Chapter 654. The commission shall set the salaries of personnel employed under this section.
4186 78th Legislature — Regular Session 82nd Day
SECTIONi29.iiThe heading to Section 467.103, Government Code, is amended to read as follows:
Sec.i467.103.iiDUTIES OF EXECUTIVE DIRECTOR AND BINGO OPERATIONS DIRECTOR.
SECTIONi30.iiSection 467.103(a), Government Code, is amended to read as follows:
(a)iiThe executive director and bingo operations director shall perform all duties required by the commission to administer this chapter and the laws under the commission's jurisdiction. The executive director and bingo operations director may not hold other employment.
SECTIONi31.iiSection 467.104(b), Government Code, is amended to read as follows:
(b)iiThe executive director shall keep the records of the commission, except that the bingo operations director shall keep the records of the bingo division.
SECTIONi32.iiSubchapter C, Chapter 467, Government Code, is amended by adding Section 467.109 to read as follows:
Sec.i467.109.iiINTELLECTUAL PROPERTY. (a) The commission may:
(1)iiacquire, apply for, register, secure, hold, protect, and renew under the laws of this state, another state, the United States or any nation:
(A)iia patent for the invention or discovery of:
(i)iiany new use of a known process, art, method, machine, manufacture, composition of matter, or material; or
(ii)iiany new and useful improvement on a known process, art, method, machine, manufacture, composition of matter, or material;
(B)iia copyright of an original work of authorship fixed in any tangible medium of expression, now known or later developed, from which the work may be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device;
(C)iia trademark, service mark, collective mark, or certification mark for a word, name, symbol, device, or slogan that the commission uses to identify and distinguish the commission's goods and services from other goods and services; and
(D)iiother evidence of protection or exclusivity issued for intellectual property;
(2)iicontract with a person for the reproduction, distribution, public performance, display, advertising, marketing, lease, licensing, sale, use, or other distribution of the commission's intellectual property;
(3)iiobtain under a contract described by Subdivision (2) a royalty, license right, or other appropriate means of securing reasonable compensation for the exercise of rights with respect to the commission's intellectual property; and
(4)iiwaive, increase, or reduce the amount of compensation secured by contract under Subdivision (3) if the commission determines that the waiver or reduction will:
(A)iifurther a goal or mission of the commission; and
(B)iiresult in a net benefit to this state.
(b)iiIntellectual property of the commission is excepted from required disclosure under Chapter 552:
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(1)iibeginning on the date the commission decides to seek a patent, copyright, trademark, service mark, collective mark, certification mark, or other evidence of protection of exclusivity concerning the intellectual property; and
(2)iiending on the date the commission receives a decision about the commission's application for a patent, copyright, trademark, service mark, collective mark, certification mark, or other evidence of protection of exclusivity concerning the intellectual property.
(c)iiThe commission may not be required to disclose a trade secret from the time of inception or creation of the trade secret rights until the trade secret is publicly disclosed by the commission with the intention of publicly disclosing the trade secret.
(d)iiExcept as provided by Section 2054.115(c), money paid to the commission under this section shall be deposited to the credit of the general revenue fund.
SECTIONi33.iiSubchapter C, Chapter 467, Government Code, is amended by adding Sections 467.110-467.113 to read as follows:
Sec.i467.110.iiTECHNOLOGY POLICY. The commission shall develop and implement a policy requiring the executive director and commission employees to research and propose appropriate technological solutions to improve the commission's ability to perform its functions. The technological solutions must:
(1)iiensure that the public is able to easily find information about the commission on the Internet;
(2)iiensure that persons who want to use the commission's services are able to:
(A)iiinteract with the commission 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 commission's planning processes.
Sec.i467.111.iiNEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a) The commission shall develop and implement a policy to encourage the use of:
(1)iinegotiated rulemaking procedures under Chapter 2008 for the adoption of commission rules; and
(2)iiappropriate alternative dispute resolution procedures under Chapter 2009 to assist in the resolution of internal and external disputes under the commission's jurisdiction.
(b)iiThe commission'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 commission 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 commission.
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Sec.i467.112.iiPUBLIC PARTICIPATION. The commission shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the jurisdiction of the commission.
Sec.i467.113.iiCOMPLAINTS. (a) The commission shall maintain a file on each written complaint filed with the commission or a division of the commission. The file must include:
(1)iithe name of the person who filed the complaint;
(2)iithe date the complaint is received by the commission or a division of the commission;
(3)iithe subject matter of the complaint;
(4)iithe name of each person contacted in relation to the complaint;
(5)iia summary of the results of the review or investigation of the complaint; and
(6)iian explanation of the reason the file was closed, if the commission closed the file without taking action other than to investigate the complaint.
(b)iiThe commission shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the commission's policies and procedures relating to complaint investigation and resolution.
(c)iiThe commission, at least quarterly until final disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation.
(d)iiThe commission shall publish procedures covering the entire complaint process from submission to disposition.
(e)iiThe commission by rule shall require an investigation related to a complaint filed with the commission or a division of the commission to be completed within a reasonable time.
(f)iiThe commission shall analyze the complaints filed with the board to identify any trends or issues related to certain violations.
SECTIONi34.iiSections 2001.002(5) and (6), Occupations Code, are amended to read as follows:
(5)ii"Bingo equipment" means equipment used, made, or sold for the purpose of use in bingo. The term:
(A)iiincludes:
(i)iia machine or other device from which balls or other items are withdrawn to determine the letters and numbers or other symbols to be called;
(ii)iian electronic or mechanical cardminding device;
(iii)iia pull-tab dispenser;
(iv)iia bingo card; [and]
(v)iia bingo ball; and
(vi)i[(v)]iiany other device commonly used in the direct operation of
a bingo game; and
(B)iidoes not include:
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(i)iia bingo game set commonly manufactured and sold as a child's game for a retail price of $20 or less unless the set or a part of the set is used in bingo subject to regulation under this chapter; or
(ii)iia commonly available component part of bingo equipment such
as a light bulb[,] or fuse[, or bingo ball].
(6)ii"Bingo occasion" means [all activities incident to the conduct of a series
of bingo games by a licensed authorized organization, including] the organization's
licensed times [and any preparatory or concluding activities incident to the conduct of
bingo].
SECTIONi35.iiSection 2001.055, Occupations Code, is amended to read as follows:
Sec.i2001.055.iiREGULATION OF GAMES. (a) The commission by rule may establish the number and type of bingo games that may be played during a bingo occasion.
(b)iiThe commission, to the extent consistent with this chapter, shall reasonably support the efforts of licensed authorized organizations to develop and offer new types of bingo games and to apply new technology to bingo games.
SECTIONi36.iiSubchapter B, Chapter 2001, Occupations Code, is amended by adding Section 2001.0555 to read as follows:
Sec.i2001.0555.iiCOMPLIANCE MONITORING. The commission shall adopt rules to govern the commission's monitoring of a license holder to determine if the license holder is in compliance with this chapter or rules adopted under this chapter. The rules must at a minimum address audits and inspections and other compliance and enforcement activities.
SECTIONi37.iiSection 2001.057, Occupations Code, is amended by adding Subsections (h) and (i) to read as follows:
(h)iiThe committee shall annually develop a work plan detailing the committee's objectives and the issues to be addressed by the committee during the year. The plan must:
(1)iiassess trends in the charitable bingo industry;
(2)iireview bingo rules to determine whether changes, additions, or deletions are needed; and
(3)iiaddress other issues as determined by the commission.
(i)iiThe committee shall perform a review at the end of each year to:
(1)iiassess the committee's accomplishments during the year;
(2)iiidentify opportunities for improving the commission's regulation of bingo; and
(3)iidevelop specific recommendations for commission action.
SECTIONi38.iiSubchapter B, Chapter 2001, Occupations Code, is amended by adding Section 2001.059 to read as follows:
Sec.i2001.059.iiADVISORY OPINIONS. (a) A person may request from the director of bingo operations an advisory opinion regarding compliance with this chapter and the rules of the commission relating to the enforcement or administration of this chapter. An advisory opinion is not subject to the rulemaking provisions of Chapter 2001, Government Code.
4190 78th Legislature — Regular Session 82nd Day
(b)iiThe director of bingo operations shall respond to a request under Subsection (a) not later than the 30th day after the date a request is received, unless the director requests an opinion on the matter from the attorney general or determines the request does not contain sufficient facts to provide an answer on which the requestor may rely. In that event, the director shall request additional information from the requestor not later than the 10th day after the date the request is received. If the director requests additional information, the director shall respond to the request not later than the 30th day after the date additional information is received pursuant to the request for additional information.
(c)iiA person who requests an advisory opinion under Subsection (a) may act in reliance on the opinion in the conduct of any activity under any license issued under this chapter if the conduct is substantially consistent with the opinion and the facts stated in the request.
SECTIONi39.iiSection 2001.101, Occupations Code, is amended to read as follows:
Sec.i2001.101.iiAUTHORIZED ORGANIZATION. (a) The commission may license a person who is an authorized organization eligible for a license to conduct bingo if the person has been in existence for the time required by commission rule to ensure the continuity and bona fide nature of the organization and is:
(1)iia religious society [that has existed in this state for at least eight years];
(2)iia nonprofit organization:
(A)iiwhose predominant activities are for the support of medical research or treatment programs; and
(B)iithat [for at least three years]:
(i)iihas [must have had] a governing body or officers elected by a
vote of members or by a vote of delegates elected by the members; or
(ii)iiis [must have been] affiliated with a state or national
organization organized to perform the same purposes as the nonprofit organization;
(3)iia fraternal organization;
(4)iia veterans organization; or
(5)iia volunteer fire department.
(b)iiA fraternal organization:
(1)ii[must have been organized in this state for at least three years;
[(2)]iimust have [had during the three-year period] a bona fide membership
actively and continuously engaged as an organization in furthering its authorized
purposes; and
(2)i[(3)]iimay not have authorized a person on behalf of its membership,
governing body, or officers to support or oppose a particular candidate for public
office by:
(A)iimaking political speeches;
(B)iipassing out cards or other political literature;
(C)iiwriting letters;
(D)iisigning or circulating petitions;
(E)iimaking campaign contributions; or
(F)iisoliciting votes.
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SECTIONi40.iiSection 2001.102(b), Occupations Code, is amended to read as follows:
(b)iiThe application must include:
(1)iithe name and address of the applicant;
(2)iithe names and addresses of the applicant's officers and directors;
(3)iithe address of the premises where and the time when the applicant intends to conduct bingo under the license sought;
(4)iithe name and address of the licensed commercial lessor of the premises, if the applicant intends to lease premises to conduct bingo from a person other than an authorized organization;
(5)iithe capacity or potential capacity for public assembly in any premises owned or occupied by the applicant;
(6)iithe amount of rent to be paid or other consideration to be given, directly or indirectly, for each occasion for use of the premises of another licensed authorized organization or for use of the premises of a licensed commercial lessor;
(7)iiall other items of expense intended to be incurred or paid in connection with conducting, promoting, and administering bingo and the names and addresses of the persons to whom, and the purposes for which, the expenses are to be paid;
(8)iithe specific purposes to and the manner in which the net proceeds of bingo are to be devoted;
(9)iia statement that the net proceeds of bingo will go to one or more of the authorized charitable purposes under this chapter;
(10)iia designation of one or more active members of the applicant organization under whom bingo will be conducted accompanied by a statement signed by each designated member stating that the member will be responsible for the conduct of bingo under the terms of the license and this chapter;
(11)ii[a statement that a copy of the application has been sent to the
appropriate governing body;
[(12)]iithe name and address of each person who will work at the proposed
bingo occasion, the nature of the work to be performed, and a statement as to whether
the person has been convicted of a felony, a gambling offense, criminal fraud, or a
crime of moral turpitude; and
(12)i[(13)]iisufficient facts relating to the applicant's incorporation and
organization to enable the commission to determine whether the applicant is an
authorized organization.
SECTIONi41.iiSection 2001.103(d), Occupations Code, is amended to read as follows:
(d)iiAn organization operating under a temporary license is subject to:
(1)iithe taxes and fees authorized or imposed by this chapter; [and]
(2)iithe standard licensing oversight of the commission, including audits and inspections; and
(3)iithe other provisions of this chapter to the extent they can be made applicable.
SECTIONi42.iiSection 2001.104, Occupations Code, is amended by adding Subsection (d) to read as follows:
4192 78th Legislature — Regular Session 82nd Day
(d)iiAn applicant shall pay the fees established under Subsection (a) annually. An applicant for a license or renewal of a license may obtain a license that is effective for two years by paying an amount equal to two times the amount of the annual license fee plus $25.
SECTIONi43.iiSection 2001.105, Occupations Code, is amended by amending Subsection (b) and adding Subsections (c) and (d) to read as follows:
(b)iiThe commission may not issue a license to an authorized organization to conduct bingo if an officer or director of the organization has been convicted of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude if less than 10 years has elapsed since the termination of a sentence, parole, mandatory supervision, or community supervision served for the offense.
(c)iiThe commission may not issue a license to an authorized organization to conduct bingo if the location of the premises at which the authorized organization would conduct bingo is:
(1)iiin a facility that shares a common roof or common foundation with a location at which a gambling device, as defined by Section 47.01, Penal Code, is operated or located; or
(2)iiwithin 150 feet of the common roof or common foundation described by Subdivision (1).
(d)iiExcept as provided by Section 2001.104(d), a license issued under this subchapter is effective for one year.
SECTIONi44.iiSubchapter C, Chapter 2001, Occupations Code, is amended by adding Section 2001.108 to read as follows:
Sec.i2001.108.iiLICENSE AMENDMENT FOR CHANGE OF BINGO PREMISES OR OCCASIONS. (a) A licensed authorized organization and the licensed commercial lessor at which the organization conducts or will conduct bingo may file a joint application with the commission to change the premises at which the organization may conduct bingo or the times of the organization's bingo occasions to allow the organization to conduct bingo at the same time and premises that another licensed authorized organization is licensed to conduct bingo, if the other organization has ceased, or will cease, conducting bingo at that time and premises. The application must state whether the other organization has ceased or will cease conducting bingo at that time and premises because:
(1)iithe organization has abandoned or will abandon its licensed time or premises; or
(2)iithe organization's lease has been or will be terminated.
(b)iiIf the other organization ceased or will cease conducting bingo for the reason stated in Subsection (a)(1), the commission must act on the joint application filed under Subsection (a) not later than the 10th day after the date the application is filed with the commission.
(c)iiIf the other organization ceased or will cease conducting bingo for the reason stated in Subsection (a)(2), the commission must act on the joint application filed under Subsection (a) not later than the 10th day after the date the application is filed with the commission or the date on which the termination takes effect, whichever is later.
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(d)iiIf the commission fails to act within the time provided by Subsection (b) or (c), the licensed authorized organization may act as if the change in premises or bingo occasions has been approved by the commission and may conduct bingo at the new premises or during the new bingo occasion until the commission acts on the application.
(e)iiNotwithstanding Subsection (d), the commission may issue temporary licenses to one or more licensed authorized organizations that conduct bingo at the same location as an organization that has ceased or will cease to conduct bingo, which are in addition to the number of temporary licenses each organization is entitled to under another provision of this chapter. The commission is not required to act on a joint application under Subsection (a) within the time provided by this section for the additional temporary licenses if the number of additional temporary licenses is sufficient to allow the other organization to conduct bingo during the licensed times of the organization that has ceased or will cease to conduct bingo.
SECTIONi45.iiChapter 2001, Occupations Code, is amended by adding Subchapter C-1 to read as follows:
SUBCHAPTER C-1. AUTHORIZED ORGANIZATION
EMPLOYEE LICENSE
Sec.i2001.121.iiLICENSE REQUIRED. An individual may not in any capacity participate or assist in the conduct, promotion, or administration of bingo unless the individual holds an authorized organization employee license issued by the commission.
Sec.i2001.122.iiAPPLICATION; ISSUANCE OF LICENSE. The commission shall issue an authorized organization employee license to an eligible individual who applies using an application form prescribed by the commission and pays the applicable license fee.
Sec.i2001.123.iiFEES. The commission by rule shall prescribe a fee schedule for licenses issued under this subchapter. In setting fees under the fee schedule, the commission shall include the cost of a criminal background check.
Sec.i2001.124.iiRENEWAL OF LICENSE. (a) A license issued under this subchapter is valid for a period set by the commission not to exceed 36 months following the date of issuance.
(b)iiA license is renewable on application and payment of the fee in accordance with commission rules.
(c)iiThe commission by rule may adopt a system under which licenses expire on various dates during the year. For the year in which the license expiration date is changed, license fees shall be prorated on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable.
Sec.i2001.125.iiDENIAL, SUSPENSION, OR REVOCATION OF LICENSE. After a hearing, the director of bingo operations shall deny an application for a license under this subchapter or the commission shall revoke or suspend the license if the director or commission, as applicable, determines that the applicant or license holder:
(1)iihas violated this chapter or a rule adopted by the commission;
(2)iihas been convicted of a felony or of a crime involving moral turpitude;
4194 78th Legislature — Regular Session 82nd Day
(3)iifailed to answer or has falsely or incorrectly answered a question in an application for a license under this chapter;
(4)iiis indebted to this state for any fees or for the payment of a penalty imposed by this chapter or commission rule;
(5)iiis not of good moral character;
(6)iiresides in the same household with a person whose license has been revoked for cause within the 12 months immediately preceding the date of submission of the applicant's or license holder's most recent license application;
(7)iihas failed or refused to furnish a true copy of the application to the commission; or
(8)iiis engaged or has engaged in activities or practices that are detrimental to the best interests of the public.
Sec.i2001.126.iiLICENSE NUMBER AND IDENTIFICATION CARD. (a) The commission shall issue to each individual who holds an authorized organization employee license a license number and identification card that includes the individual's photograph.
(b)iiEach license holder must wear the identification card provided by the commission at all times while participating or assisting in the conduct, promotion, or administration of bingo.
(c)iiA license issued under this subchapter is valid at any licensed bingo occasion conducted in this state.
Sec.i2001.127.iiTEMPORARY LICENSE. (a) Pending an investigation of an applicant's eligibility for a license, including renewal of a license, the commission may issue a temporary authorized organization employee license to an applicant whose application appears to comply with this chapter and commission rules and who has paid the necessary fee.
(b)iiA temporary license issued under this section is valid for a period not to exceed 120 days from the date of issuance.
Sec.i2001.128.iiLICENSED AUTHORIZED ORGANIZATION: RECORDS AND PENALTY. (a) A licensed authorized organization shall maintain a record, for each bingo occasion of each individual who participated or assisted in the conduct, promotion, or administration of bingo, that includes:
(1)iithe individual's license number; and
(2)iithe fees or other compensation paid to the individual for services related to the occasion.
(b)iiA licensed authorized organization annually shall submit to the commission, on a form prescribed by the commission, a compensation report that details for the year reported:
(1)iieach job category related to the conduct of bingo for which the organization pays compensation;
(2)iieach compensation rate paid in each job category; and
(3)iithe number of employees paid each compensation rate.
(c)iiThe commission shall revoke the license to conduct bingo of a licensed authorized organization that employs or otherwise uses an unlicensed individual in an activity for which a license is required by this subchapter.
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SECTIONi46.iiSection 2001.152, Occupations Code, is amended to read as follows:
Sec.i2001.152.iiELIGIBILITY.ii[(a)] The commission may issue a commercial
lessor license [only] to[:
[(1)iia licensed authorized organization that owns or leases a premises where
bingo is or will be conducted or an association of licensed authorized organizations
that jointly own or lease premises where bingo is or will be conducted and that the
organization or association leases or offers for lease to one or more other authorized
organizations for the conduct of bingo;
[(2)]iia person who leases premises on which bingo is conducted to not more
than seven [a single] licensed authorized organizations [organization that subleases or
will sublease the premises to one or more other licensed authorized organizations for
the conduct of bingo; or
[(3)iia person who leases premises for the total control and exclusive use of
only one licensed authorized organization as that organization's primary business
office].
[(b)iiNotwithstanding Subsection (a), a person who was a licensed commercial
lessor on June 10, 1989, whose license has been in effect continuously since that date,
and who is otherwise eligible for the license may renew the license.]
SECTIONi47.iiSection 2001.154(a), Occupations Code, is amended to read as follows:
(a)iiThe commission may not issue a commercial lessor license to or renew a commercial lessor license of:
(1)iia person convicted of a felony, criminal fraud, a gambling or gambling-related offense, or a crime of moral turpitude if less than 10 years has elapsed since termination of a sentence, parole, mandatory supervision, or community supervision served for the offense;
(2)iia public officer who receives any consideration, direct or indirect, as owner or lessor of premises offered for conducting bingo;
(3)iia person who extends credit to, loans money to, or pays or provides for the payment of license fees for an authorized organization;
(4)iia distributor or manufacturer;
(5)iia person in which a person covered by Subdivision (1), (2), (3), or (4) or a person married or related in the first degree by consanguinity or affinity, as determined under Chapter 573, Government Code, to one of those persons has greater than a 10 percent proprietary, equitable, or credit interest or in which one of those persons is active or employed; or
(6)iia person whose location for a bingo premises is:
(A)iiin a facility that shares a common roof or common foundation with a location at which a gambling device, as defined by Section 47.01, Penal Code, is operated or located; or
(B)iiwithin 150 feet of the common roof or common foundation
described by Paragraph (A) [a foreign corporation or other foreign legal entity;
[(7)iian individual who is not a resident of this state;
[(8)iia corporation or other legal entity owned or controlled by:
[(A)iia foreign corporation; or
4196 78th Legislature — Regular Session 82nd Day
[(B)iian individual who is not a resident of this state; or
[(9)iia corporation or other legal entity:
[(A)iiwhose shares are publicly traded; or
[(B)iiowned or controlled by a corporation whose shares are publicly
traded].
SECTIONi48.iiSection 2001.158, Occupations Code, is amended by adding Subsection (d) to read as follows:
(d)iiAn applicant for a commercial lessor license shall pay the fees established under Subsection (a) annually. An applicant for a license or renewal of a license may obtain a license that is effective for two years by paying an amount equal to two times the amount of the annual license fee plus $25.
SECTIONi49.iiSection 2001.159(c), Occupations Code, is amended to read as follows:
(c)iiExcept as provided by Section 2001.158(d), the [The] period may not exceed
one year.
SECTIONi50.iiSection 2001.161, Occupations Code, is amended to read as follows:
Sec.i2001.161.iiLICENSED AUTHORIZED ORGANIZATION AS
COMMERCIAL LESSOR. (a) An authorized organization that holds a commercial
lessor license to lease a premises on which bingo is conducted may also [must] hold a
license to conduct bingo at the same premises.
(b)iiA licensed authorized organization may obtain only one commercial lessor license. The commercial lessor license may be issued only for the same premises where the organization is licensed to conduct bingo.
[(c)iiThe commission may issue a commercial lessor license to a licensed
authorized organization only for the same premises where the organization is licensed
to conduct bingo.]
SECTIONi51.iiSection 2001.214, Occupations Code, is amended to read as follows:
Sec.i2001.214.iiLICENSE TERM. (a) Except as provided by Subsection (b), a
[A] manufacturer's or distributor's license is effective for one year unless revoked or
suspended by the commission.
(b)iiA manufacturer or distributor may obtain a license that is effective for two years by paying an amount equal to two times the amount of the annual license fee plus $1,000.
SECTIONi52.iiSection 2001.218(a), Occupations Code, is amended to read as follows:
(a)iiEach sale or lease of bingo supplies or equipment to a license holder under this chapter must be on terms of immediate payment or on terms requiring payment not later than the 30th day after the date of actual delivery.
SECTIONi53.iiSubchapter G, Chapter 2001, Occupations Code, is amended by adding Section 2001.3015 to read as follows:
Sec.i2001.3015.iiLICENSING RULES. The commission by rule shall:
(1)iiestablish comprehensive qualifications for a person to be licensed or the person's license to be renewed under this chapter;
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(2)iidevelop a standard license renewal process, from submission to completion, for each license issued under this chapter to ensure that a license holder continues to meet the eligibility requirements provided by this chapter and commission rule; and
(3)iiestablish standards of conduct for a person licensed under this chapter.
SECTIONi54.iiSection 2001.307, Occupations Code, is amended to read as follows:
Sec.i2001.307.iiMAXIMUM LICENSE TERM. Except as otherwise provided
by this chapter, a [A] license issued under this chapter may not be effective for more
than one year.
SECTIONi55.iiSection 2001.351, Occupations Code, is amended to read as follows:
Sec.i2001.351.iiDENIAL OF LICENSE. (a) The commission may deny an application for a license or renewal of a license issued under this chapter for a cause that would permit or require the suspension or revocation of a license issued under this chapter.
(b)iiIn making a determination whether to renew a license, the commission shall consider the compliance history of a license holder. The commission shall adopt rules to govern the specific areas of compliance history that may be considered in the renewal determination.
(c)iiAfter an opportunity for a hearing, the commission may deny an application for renewal of a license if the applicant's compliance history reveals conduct that is inconsistent with this chapter or the commission's rules adopted under this chapter in the specific areas considered by the commission in accordance with the rules adopted under Subsection (b).
SECTIONi56.iiSubchapter H, Chapter 2001, Occupations Code, is amended by adding Section 2001.358 to read as follows:
Sec.i2001.358.iiSUMMARY SUSPENSION. (a) The commission, through the director of bingo operations, may summarily suspend, without notice or a hearing, a license issued under this chapter if the director finds the action is necessary to prevent financial loss to the state and the license holder has failed to file a report or return or to make a fee or tax payment required by this chapter.
(b)iiTo summarily suspend a license under this section, the commission through the director of bingo operations must institute proceedings for a preliminary hearing before the commission or the commission's representative simultaneously with the summary suspension. The preliminary hearing shall be set for a date not later than the 10th day after the date of the summary suspension, unless the parties agree to a later date.
(c)iiAt the preliminary hearing, the license holder must show cause why the license should not remain suspended pending a final hearing on suspension or revocation.
(d)iiChapter 2001, Government Code, does not apply to a summary suspension under this section.
4198 78th Legislature — Regular Session 82nd Day
(e)iiTo initiate a proceeding to summarily suspend a license, the commission, through the director of bingo operations, must serve notice to the license holder informing the license holder of the right to a preliminary hearing and of the time and place of the preliminary hearing. The notice must:
(1)iibe personally served on the license holder or an officer, employee, or agent of the license holder or be sent by certified or registered mail, return receipt requested, to the license holder's mailing address as it appears in the commission's records; and
(2)iistate the alleged violations that constitute grounds for summary suspension.
(f)iiIf notice required under Subsection (e) is served in person, the license holder shall immediately surrender the license to the commission. If notice is served by mail, the license holder shall immediately return the license to the commission.
(g)iiA suspension under this section takes effect on the third day after the date the notice of suspension is given.
(h)iiThe commission shall terminate a suspension made under this section when the license holder files all required reports and returns and makes all required tax and fee payments, including payments of interest and penalties that are due.
SECTIONi57.iiSection 2001.406(a), Occupations Code, is amended to read as follows:
(a)iiThe rent charged by a licensed commercial lessor to a licensed authorized
organization to conduct bingo may not exceed $600 for each bingo occasion
conducted on the lessor's premises [unless the organization subleases the premises to
one or more other licensed authorized organizations to conduct bingo, in which event
the rent charged by the licensed commercial lessor may not exceed $600 for each
day].
SECTIONi58.iiSection 2001.411, Occupations Code, is amended by adding Subsection (e) to read as follows:
(e)iiThe commission may not prohibit an operator responsible for conducting, promoting, or administering bingo from acting as a bingo caller for a licensed authorized organization during a bingo occasion. This subsection does not relieve the operator of the duty to be available to a commission employee or bingo player if required by this chapter.
SECTIONi59.iiSubchapter I, Chapter 2001, Occupations Code, is amended by adding Section 2001.4115 to read as follows:
Sec.i2001.4115.iiJOINT EMPLOYMENT OF BINGO EMPLOYEES. Two or more licensed authorized organizations conducting bingo at the same premises may jointly hire bingo employees. One organization may act as the employee's employer and the other organization may reimburse the employing organization for the other organization's share of the employee's compensation and other employment-related costs. A reimbursement under this section is an authorized expense and must be made from the bingo account of the reimbursing organization.
SECTIONi60.iiSection 2001.415, Occupations Code, is amended to read as follows:
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Sec.i2001.415.iiADVERTISEMENTS. (a) A person other than a licensed authorized organization, licensed commercial lessor, or the commission may not advertise bingo.
(b)iiA licensed authorized organization, licensed commercial lessor, or the commission may include in an advertisement or promotion the amount of a prize or series of prizes offered at a bingo occasion.
SECTIONi61.iiSections 2001.416(c) and (d), Occupations Code, are amended to read as follows:
(c)iiThe commission has oversight, including the authority to conduct audits, inspections, and investigations, of a game of chance that is conducted, or a machine or device for conducting a game of chance that is located:
(1)iion a bingo premises;
(2)iiat a location that shares a common roof or common foundation with a bingo premises; or
(3)iiwithin 150 feet of the common roof or common foundation described by Subdivision (2).
(d)iiThe commission may [shall] adopt rules for the implementation of this
section.
[(d)iiThis section does not prohibit the exhibition and play of an amusement
machine that is not a gambling device as defined by Section 47.01, Penal Code.]
SECTIONi62.iiSection 2001.419, Occupations Code, is amended to read as follows:
Sec.i2001.419.iiBINGO OCCASIONS. (a) [A bingo occasion begins when the
premises are opened to the public.
[(b)]iiA licensed authorized organization may not conduct more than three [a]
bingo occasions [occasion more often than three days] during a calendar week and
each occasion may not [to] exceed [more than] four hours [during a 24-hour period].
(b)i[(c)]iiA licensed authorized organization may conduct two bingo occasions
during a 24-hour period under the organization's annual license. No more than two
bingo occasions may be conducted at the same premises during one day except that a
third bingo occasion may be conducted under a temporary license held by a licensed
authorized organization that also conducts licensed occasions under the organization's
annual license at that premises.
(c)i[(d)iiNo more than two licensed authorized organizations may conduct bingo
at the same premises during a 24-hour period. If two organizations conduct bingo at
the same premises during a 24-hour period, the bingo occasions must be announced
separately, and an intermission of at least 10 minutes must occur between the bingo
occasions.
[(e)]iiIf two licensed authorized organizations are authorized to conduct bingo at
the same premises on the same day, the end time of the bingo occasion of one
organization may not overlap with the start time of the bingo occasion of the other
organization[, but their games must be separated by the intermission required under
Subsection (d). In that event, the intermission is considered part of each organization's
bingo occasion].
SECTIONi63.iiChapter 2001, Occupations Code, is amended by adding Subchapter I-1 to read as follows:
4200 78th Legislature — Regular Session 82nd Day
SUBCHAPTER I-1. UNIT ACCOUNTING
Sec.i2001.431.iiDEFINITIONS. In this subchapter:
(1)ii"Unit" means two or more licensed authorized organizations that conduct bingo at the same location and that join together to share revenues, authorized expenses, and inventory related to bingo operations.
(2)ii"Unit accounting" means a method by which licensed authorized organizations that are members of a unit account for the sharing of revenues, authorized expenses, and inventory related to bingo operations.
(3)ii"Unit accounting agreement" means a written agreement by all the licensed authorized organizations that are members of a unit that contains, at a minimum:
(A)iithe taxpayer name and number of each licensed authorized organization that is a member of the unit;
(B)iithe method by which the net proceeds of the bingo operations of the unit will be apportioned among the members of the unit;
(C)iithe name of the unit manager or designated agent of the unit; and
(D)iithe methods by which the unit may be dissolved and by which one or more members of the unit may withdraw from participation in the unit, including the distribution of funds, records, and inventory and the allocation of authorized expenses and liabilities on dissolution or withdrawal of one or more members of the unit.
(4)ii"Unit manager" means an individual licensed under this subchapter to be responsible for the revenues, authorized expenses, and inventory of a unit.
Sec.i2001.432.iiFORMING ACCOUNTING UNIT. (a) Two or more licensed authorized organizations may form and operate a unit as provided by this subchapter by:
(1)iiexecuting a unit accounting agreement; and
(2)iistating in the unit accounting agreement whether the unit will use:
(A)iia unit manager; or
(B)iia designated agent.
(b)iiMore than one unit may be formed at a single location. A licensed authorized organization may not be a member of more than one unit.
(c)iiThis subchapter does not require a licensed authorized organization to join a unit. Except as provided by Subsection (d), whether to join or withdraw from a unit is at the discretion of each licensed authorized organization.
(d)iiThe members of a unit may determine whether to allow another licensed authorized organization to join the unit. The terms of the withdrawal of a member from the unit are governed by the unit accounting agreement.
Sec.i2001.433.iiAPPLICABILITY OF CHAPTER. A licensed authorized organization that uses unit accounting is subject to the other provisions of this chapter to the extent the provisions are applicable and are not inconsistent with this subchapter.
Sec.i2001.434.iiCONDUCT OF BINGO. (a) Each licensed authorized organization that is a member of a unit shall conduct its bingo games separately from the bingo games of the other members of the unit.
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(b)iiA unit may purchase or lease bingo supplies and equipment in the same manner as a licensed authorized organization.
(c)iiA licensed distributor may sell or lease bingo supplies or equipment to a unit in the same manner as the distributor sells or leases bingo supplies and equipment to a licensed authorized organization.
Sec.i2001.435.iiUNIT ACCOUNTING. (a) A unit:
(1)iishall establish and maintain one checking account designated as the unit's bingo account;
(2)iishall maintain one inventory of bingo supplies and equipment for use in the bingo operations of members of the unit; and
(3)iimay maintain an interest-bearing savings account designated as the unit's bingo savings account.
(b)iiEach member of a unit shall deposit into the unit's bingo account all funds derived from the conduct of bingo, less the amount awarded as cash prizes under Sections 2001.420(a) and (b). The deposit shall be made not later than the next business day after the day of the bingo occasion on which the receipts were obtained.
(c)iiAll authorized expenses and distributions of the unit and its members shall be paid from the unit's bingo checking account.
Sec.i2001.436.iiDISBURSEMENT OF FUNDS BY DISSOLVED UNIT. (a) Sections 2001.457(a) and (b) apply to a unit formed under this subchapter. For purposes of this subchapter, the requirements of Sections 2001.457(a) and (b) that are applicable to a licensed authorized organization shall be applied to a unit.
(b)iiA unit that has dissolved for any reason and has unexpended bingo funds shall disburse those funds to the bingo account of each member of the unit before the end of the next calendar quarter after the calendar quarter in which the unit dissolves.
(c)iiFor purposes of the application of Sections 2001.457(a) and (b) to a unit under this section:
(1)ii"adjusted gross receipts" means gross receipts less the amount of cost of goods purchased by a unit and prizes paid in the preceding quarter; and
(2)ii"cost of goods purchased by a unit" means the cost of bingo paper and pull-tab bingo tickets purchased by the unit and payments to distributors for electronic card-minding devices.
Sec.i2001.437.iiUNIT MANAGER; LICENSE. (a) If a unit accounting agreement for a unit states a unit manager is responsible for compliance with commission rules and this chapter, the unit manager is responsible for:
(1)iifiling with the commission a quarterly report for the unit on a form prescribed by the commission; and
(2)iipaying taxes and fees and maintaining the bingo inventory and financial records for the unit.
(b)iiA unit with a unit manager shall notify the commission of the name of the unit manager and immediately notify the commission of any change of unit manager.
(c)iiA person may not provide services as a unit manager to licensed authorized organizations that form a unit unless the person holds a unit manager license under this subchapter. A person designated as an agent under Section 2001.438(b) is not a unit manager by that designation for purposes of this section.
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(d)iiAn applicant for a unit manager license must file with the commission a written application on a form prescribed by the commission that includes:
(1)iithe name and address of the applicant;
(2)iiinformation regarding whether the applicant, or any officer, director, or employee of the applicant, has been convicted of a felony, criminal fraud, gambling or gambling-related offense, or crime of moral turpitude; and
(3)iiany other information required by commission rule.
(e)iiThe commission by rule shall establish an annual license fee for a unit manager license in an amount reasonable to defray administrative costs plus any costs incurred to conduct a criminal background check.
(f)iiA person who holds a unit manager license shall post a bond or other security pursuant to Section 2001.514.
(g)iiA person is not eligible for a unit manager license under this subchapter if the person, or any officer, director, or employee of the person:
(1)iihas been convicted of a felony, criminal fraud, a gambling or gambling-related offense, or crime of moral turpitude, if less than 10 years has elapsed since the termination of a sentence, parole, or community supervision served for the offense;
(2)iiis an owner, officer, or director of a licensed commercial lessor, is employed by a licensed commercial lessor, or is related to a licensed commercial lessor within the second degree by consanguinity or affinity, unless the holder of the license is a licensed authorized organization or an association of licensed authorized organizations; or
(3)iiholds or is listed on another license under this chapter, unless the holder of the license is a licensed authorized organization or an association of licensed authorized organizations.
(h)iiA unit manager must complete the training required by Section 2001.107.
Sec.i2001.438.iiAGREEMENT WITHOUT UNIT MANAGER. (a) This section applies to a unit if the unit accounting agreement for the unit:
(1)iidoes not state that a unit manager will be responsible for compliance with the rules of the commission and this chapter; or
(2)iistates that the unit will use a designated agent.
(b)iiThe unit shall:
(1)iidesignate an individual as its agent, who will be responsible for providing the commission access to all inventory and financial records of the unit on request of the commission; and
(2)iinotify the commission of the name of the individual designated under Subdivision (1).
(c)iiThe agent designated under Subsection (b) may not:
(1)iihold or be listed on another license issued under this chapter, unless the holder of the license is a licensed authorized organization or an association of licensed authorized organizations; or
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(2)iibe an owner, officer, or director of a licensed commercial lessor, be employed by a licensed commercial lessor, or be related to a licensed commercial lessor within the second degree by consanguinity or affinity, unless the holder of the license is a licensed authorized organization or an association of licensed authorized organizations.
(d)iiThe unit shall immediately notify the commission of any change in the agent designated under Subsection (b).
(e)iiThe designated agent must complete the training required by Section 2001.107.
(f)iiEach licensed authorized organization that is a member of the unit shall be jointly and severally liable for:
(1)iicompliance with the requirements of this subchapter and the rules of the commission relating to the filing of required reports;
(2)iithe maintenance of bingo inventory and financial records; and
(3)iithe payment of taxes, fees, and any penalties imposed for a violation of this subchapter or commission rules related to the operations of the unit.
(g)iiEach licensed authorized organization that is a member of the unit may be made a party to any administrative or judicial action relating to the enforcement of this subchapter or the rules of the commission pertaining to the operation of the unit.
Sec.i2001.439.iiTRUST AGREEMENT. (a) Notwithstanding any other provision of this subchapter, a unit may be formed pursuant to a trust agreement between two or more licensed authorized organizations that conduct bingo at the same location. The agreement must:
(1)iidesignate one of the organizations as the trustee;
(2)iidesignate a person who will carry out the duties described by Section 2001.438(b);
(3)iispecify the method by which the unit will comply with the requirements of Section 2001.436(a); and
(4)iistate that the trustee is responsible for compliance with the rules of the commission and this chapter.
(b)iiThe commission by rule may prohibit a person from serving as a unit manager or as a designated agent for a unit that does not use a unit manager if the person has failed to comply with the duties required of the person as a unit manager or designated agent.
(c)iiThe commission may prohibit a person who serves as a designated agent that is listed on a license under this chapter, including having been approved by the commission to work in the bingo operations of a licensed authorized organization or as an operator, from holding or being listed on any license or from being approved to work in the bingo operations of any licensed authorized organization or to serve as an operator if the person has failed to comply with the duties required of the person as a unit manager or designated agent.
SECTIONi64.iiSection 2001.451, Occupations Code, is amended by amending Subsection (b) and adding Subsections (b-1), (g), and (h) to read as follows:
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(b)iiA licensed authorized organization shall deposit in the bingo account all
funds derived from the conduct of bingo, less the amount awarded as cash prizes
under Sections 2001.420(a) and (b). Except as provided by Subsection (b-1), a [A]
deposit must be made not later than the next business day after the day of the bingo
occasion on which the receipts were obtained.
(b-1)iiA licensed authorized organization must deposit funds derived from the conduct of bingo that are paid through a debit card transaction in the bingo fund not later than 72 hours after the transaction.
(g)iiThe commission shall adopt rules to allow a licensed authorized organization to retain a maximum amount of net proceeds as operating capital in the organization's bingo account. The net proceeds retained may not exceed an amount established by commission rule.
(h)iiThe commission by rule shall require a licensed authorized organization to maintain a positive cash flow in the organization's bingo account. The commission shall sanction an organization that fails to comply with the rule.
SECTIONi65.iiSection 2001.454, Occupations Code, is amended to read as follows:
Sec.i2001.454.iiUSE OF NET PROCEEDS FOR CHARITABLE PURPOSES.
(a) A licensed authorized organization shall devote to the [a] charitable purposes of
the organization [purpose] its net proceeds of bingo and any rental of premises.
(b)iiExcept as otherwise provided by law, the [The] net proceeds derived from
bingo and any rental of premises are dedicated to the [a] charitable purposes of the
organization [purpose] only if directed to a cause, deed, or activity that is consistent
with the federal tax exemption provided by Section 501(c), Internal Revenue Code of
1986, under which the organization qualifies as a nonprofit organization as defined by
Section 2001.002 or, for a licensed authorized organization other than a nonprofit
organization, is consistent with the federal tax exemption provided by Section 501,
Internal Revenue Code of 1986, under which the organization is exempt from federal
income taxes and with the purposes and objectives for which the organization
qualifies as an authorized organization[:
[(1)iibenefits an indefinite number of needy or deserving persons in this state
by:
[(A)iienhancing their opportunity for religious or educational
advancement;
[(B)iirelieving them from disease, suffering, or distress;
[(C)iicontributing to their physical well-being;
[(D)iiassisting them in establishing themselves in life as worthy and
useful citizens; or
[(E)iiincreasing their comprehension of and devotion to the principles on
which this nation was founded and enhancing their loyalty to their government; or
[(2)iiinitiates, performs, or fosters worthy public works in this state or
enables or furthers the erection or maintenance of public structures in this state].
SECTIONi66.iiSections 2001.457(a), (b), and (d), Occupations Code, are amended to read as follows:
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(a)iiBefore the end of each quarter, a licensed authorized organization shall
disburse for charitable purposes all [an amount not less than 35 percent] of the
organization's adjusted gross receipts from the preceding quarter, except for the
amount that may be retained as provided by Section 2001.451(g) [, less the amount of
authorized expenses not to exceed six percent of the gross receipts].
(b)iiThe commission shall sanction [If] a licensed authorized organization that
fails to make [meet] the disbursement required by Subsection (a) or to make any
disbursement for charitable purposes [requirements of this section] for a quarter. The
[, the] commission in applying appropriate sanctions may consider whether, taking
into account the amount required to be distributed during that quarter and the three
preceding quarters and the charitable distributions for each of those quarters, the
organization has distributed a total amount sufficient to have met the disbursement
requirements [35 percent requirement] for that quarter and the three preceding
quarters combined.
(d)iiIn this section, "adjusted [:
[(1)ii"Adjusted] gross receipts" means gross receipts less the total [amount
of cost of goods purchased by an organization and] prizes paid in the preceding
quarter [;] and the licensed authorized organization's reasonable and necessary
expenses as provided by Sections 2001.458 and 2001.459 and by commission rule.
[(2)ii"Cost of goods purchased by an organization" means the cost of bingo
paper or pull tab bingo tickets purchased by the organization.]
SECTIONi67.iiSection 2001.458, Occupations Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:
(a)iiAn item of expense may not be incurred or paid in connection with the
conduct of bingo except an expense that is [those expenses that are] reasonable or
necessary to conduct bingo, including an expense [and necessarily expended] for:
(1)iiadvertising, including the cost of printing bingo gift certificates;
(2)iisecurity;
(3)iirepair or maintenance of [repairs to] premises and equipment;
(4)iibingo supplies and equipment;
(5)iiprizes;
(6)iistated rental or mortgage and insurance expenses;
(7)iibookkeeping, legal, or accounting services related to bingo;
(8)iifees [in amounts authorized by the commission] for licensed callers,
licensed cashiers, licensed ushers, sales personnel, janitorial services, and utility
supplies and services; [and]
(9)iilicense fees;
(10)iiattending a bingo seminar or convention required under Section 2001.107;
(11)iidebit card transaction fees; and
(12)iia salary for a manager to act as the operator responsible for conducting, promoting, or administering bingo.
(c)iiIn accordance with this section and Section 2001.459, the commission by rule shall define a licensed authorized organization's reasonable and necessary expenses under this chapter.
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SECTIONi68.iiSection 2001.459(a), Occupations Code, is amended to read as follows:
(a)iiThe following items of expense incurred or paid in connection with the conduct of bingo must be paid from an organization's bingo account:
(1)iiadvertising, including the cost of printing bingo gift certificates;
(2)iisecurity during a bingo occasion;
(3)iithe purchase or repair of bingo supplies and equipment;
(4)iiprizes, other than authorized cash prizes;
(5)iistated rental expenses;
(6)iibookkeeping, legal, or accounting services;
(7)iifees for licensed callers, licensed cashiers, and licensed ushers;
(8)iijanitorial services;
(9)iilicense fees; and
(10)iipayment for services provided by a system service provider.
SECTIONi69.iiSection 2001.504(a), Occupations Code, is amended to read as follows:
(a)iiA tax or fee authorized or imposed under this subchapter is due and is
payable by the license holder or a person conducting bingo without a license to the
commission quarterly on or before the 25th [15th] day of the month succeeding each
calendar quarter.
SECTIONi70.iiSection 2001.551, Occupations Code, is amended by amending Subsection (b) and adding Subsection (g) to read as follows:
(b)iiA person conducting, promoting, or administering bingo commits an offense if the person conducts, promotes, or administers bingo other than:
(1)iiunder a license issued under this chapter;
(2)iiwithin the confines of a home for purposes of amusement or recreation when:
(A)iino player or other person furnishes anything of more than nominal value for the opportunity to participate;
(B)iiparticipation in the game does not exceed 15 players; and
(C)iithe prizes awarded or to be awarded are nominal;
(3)iion behalf of an organization of individuals 60 years of age or over, a senior citizens' association, a senior citizens' community center program operated or funded by a governmental entity, the patients in a hospital or nursing home, residents of a retirement home, or the patients in a Veteran's Administration medical center or a military hospital, solely for the purpose of amusement and recreation of its members, residents, or patients, when:
(A)iino player or other person furnishes anything of more than nominal value for the opportunity to participate; and
(B)iithe prizes awarded or to be awarded are nominal; [or]
(4)iion behalf of a business conducting the game for promotional or advertising purposes if:
(A)iithe game is conducted by or through a newspaper or a radio or television station;
(B)iiparticipation in the game is open to the general public and is not limited to customers of the business;
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(C)iiplaying materials are furnished without charge to a person on request; and
(D)iino player is required to furnish anything of value for the opportunity to participate; or
(5)iifor business entity employee picnics, organizational quarterly or annual meetings, family reunions, or other defined group occasional gatherings if:
(A)iiparticipation is not open to the public;
(B)iiprizes are of nominal value;
(C)iithere is no cost to participate;
(D)iithe purpose of the game is for amusement, recreation, employee morale, or safety awareness;
(E)iithe game is not used to raise money for any purpose other than to award nominal prizes; and
(F)iia person is not paid solely to administer the game.
(g)iiThe commission by rule may set the nominal value of the prizes that may be awarded in a bingo game described by Subsection (b)(2), (3), or (5).
SECTIONi71.iiSections 2001.554(a) and (b), Occupations Code, are amended to read as follows:
(a)iiA person commits an offense and the person's license is subject to revocation under this chapter if the person:
(1)iimakes a false statement or material omission in an application for a license under this chapter;
(2)iifails to maintain records that fully and accurately record each transaction connected with the conducting of bingo, the leasing of premises to be used for bingo, or the manufacture, sale, or distribution of bingo supplies or equipment;
(3)iifalsifies or makes a false entry in a book or record if the entry relates to bingo, the disposition of bingo proceeds, the application of rent received by a licensed authorized organization, or the gross receipts from the manufacture, sale, or distribution of bingo supplies or equipment;
(4)iidiverts or pays a portion of the net proceeds of bingo to a person except
in furtherance of one or more of the lawful purposes provided by this chapter; [or]
(5)iiknowingly participates or assists in the conduct, promotion, or administration of bingo without holding a license required under this chapter; or
(6)iiviolates this chapter or a term of a license issued under this chapter.
(b)iiAn offense under Subsection (a)(1), [(a)](2), (3), or (6) [(5)] is a Class A [C]
misdemeanor[, unless it is shown on the trial of the offense that the person has been
convicted previously under this section, in which event the offense is a Class B
misdemeanor]. An offense under Subsection (a)(4) or (5) [(a)(1) or (4)] is a felony of
the third degree [Class A misdemeanor]. This subsection does not apply to an offense
committed under Section 2001.551(b) or Section 2001.552.
SECTIONi72.iiSubchapter L, Chapter 2001, Occupations Code, is amended by adding Section 2001.562 to read as follows:
Sec.i2001.562.iiVENUE. The following offenses may be prosecuted in Travis County in addition to any county in which the offense may be prosecuted under Chapter 13, Code of Criminal Procedure, or other law:
(1)iian offense under this chapter;
4208 78th Legislature — Regular Session 82nd Day
(2)iian offense under the Penal Code, if the accused:
(A)iiis an individual licensed under Subchapter C-1; and
(B)iiis alleged to have committed the offense while participating or assisting in the conduct, promotion, or administration of bingo; and
(3)iian offense under Title 7 or 11, Penal Code, that involves property consisting of bingo equipment.
SECTIONi73.iiSubchapter M, Chapter 2001, Occupations Code, is amended by adding Section 2001.6015 to read as follows:
Sec.i2001.6015.iiADMINISTRATIVE PENALTY SCHEDULE; TIMELINE. (a) The commission by rule shall adopt an administrative penalty schedule to define and summarize violations of this chapter or commission rules adopted under this chapter to ensure the amounts of penalties imposed are appropriate to the violation.
(b)iiThe administrative penalty schedule must:
(1)iiallow deviations from the schedule for mitigating circumstances clearly established by the commission;
(2)iiinclude a list of the most common violations and the penalty amounts assessed for those violations; and
(3)iiprovide the penalty amount in accordance with the seriousness or frequency of each type of violation.
(c)iiThe commission by rule shall establish a timeline for the resolution of a violation of this chapter or a commission rule adopted under this chapter. The rules must include:
(1)iia designated period for a person licensed under this chapter to provide proof of corrective measures taken as required by the commission for a violation of this chapter or a commission rule; and
(2)iian approach and a designated period for the commission to subsequently monitor a person determined to have committed a significant violation of this chapter or a commission rule.
SECTIONi74.iiChapter 2001, Occupations Code, is amended by adding Subchapter O to read as follows:
SUBCHAPTER O. SUBPOENAS AND RELATED PROCEDURES
Sec.i2001.701.iiSUBPOENA. (a) In an investigation of any matter under this chapter, the commission may issue a subpoena to compel the attendance and testimony of a relevant witness or the production of relevant evidence located in this state for inspection or copying by the commission.
(b)iiA subpoena may be served personally or by certified mail.
(c)iiA subpoena may require a person to appear as a witness or to produce evidence at the commission's offices in Austin, Texas, or at another place designated by the commission.
(d)iiThe commission may issue a subpoena that requires an immediate production of evidence only if:
(1)iithe subpoena states that the evidence is necessary and must be produced immediately due to exigent and extraordinary circumstances; and
(2)iithe subpoena is signed and issued by a member of the commission and an agent of the commission.
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(e)iiThe commission shall adopt rules to avoid imposing an undue burden or expense on a person for whom a subpoena is issued.
(f)iiThe commission by rule may delegate the authority granted under Subsection (a) to an agent of the commission.
(g)iiThe fee charged by a sheriff or constable for serving a commission subpoena may not exceed the fee for serving similar subpoenas.
(h)iiIn the issuance of a subpoena under this section for the records of a religious society, the commission may subpoena only the portion of the records related to bingo.
Sec.i2001.702.iiFAILURE TO COMPLY WITH SUBPOENA. (a) If a person fails to comply with a subpoena issued by the commission, the commission, acting through the attorney general, may file suit against the person to enforce the subpoena in a district court in Travis County.
(b)iiOn finding that good cause exists for issuing the subpoena, the court shall order the person to comply with the subpoena and pay reasonable attorney's fees. The court may punish a person who fails to obey the court order for contempt of court.
Sec.i2001.703.iiREIMBURSEMENT FOR SUBPOENA COMPLIANCE. A person required by a subpoena to attend a proceeding before the commission or its agent is entitled to:
(1)iireimbursement for mileage in the same amount for each mile as the mileage travel allowance for a state employee for the person's travel to or from the place where the person's attendance is required, if the place is more than 25 miles from the person's place of residence; and
(2)iia fee for each day or part of a day the person is required to be present as a witness that is equal to the greater of:
(A)ii$10; or
(B)iithe general per diem travel allowance for a state employee traveling within this state.
Sec.i2001.704.iiOUT-OF-STATE EVIDENCE. (a) A person in possession or control of evidence located outside this state on request of the commission may make the evidence available for examination at the place where the evidence is located. The commission may designate a representative, including an official of the state in which the evidence is located, to examine the evidence for the commission.
(b)iiThe commission on request of an official of another state or of the United States may examine evidence located in this state for that official in circumstances similar to those described by Subsection (a).
Sec.i2001.705.iiACCESS TO EVIDENCE. (a) Evidence acquired under a commission subpoena is not a public record for the period the commission or its agent determines is reasonably necessary to:
(1)iicomplete an investigation;
(2)iiprotect the person being investigated from unwarranted injury; or
(3)iiserve the public interest.
(b)iiThe evidence is not subject to a subpoena, other than a grand jury subpoena, until:
(1)iithe evidence is released by the commission for public inspection; or
4210 78th Legislature — Regular Session 82nd Day
(2)iiafter notice and a hearing, a district court determines that complying with the subpoena would not jeopardize the public interest or any investigation by the commission.
(c)iiExcept for good cause, a district court order under Subsection (b)(2) does not apply to:
(1)iiany communication received by the commission from a law enforcement agency or another regulatory agency; or
(2)iiany internal commission communication made in connection with a matter that the commission has the authority to consider.
Sec.i2001.706.iiPRIVILEGED AND CONFIDENTIAL INFORMATION. (a) Any information or evidence produced under a commission subpoena that is otherwise privileged or confidential by law remains privileged or confidential until admitted into evidence in an administrative hearing or a court.
(b)iiThe commission may issue a protective order relating to the confidentiality or privilege of information or evidence described by Subsection (a) to restrict the use or distribution of the information or evidence:
(1)iiby any person; or
(2)iiin a proceeding other than a proceeding before the commission.
Sec.i2001.707.iiCOOPERATION WITH LAW ENFORCEMENT. On request, the commission may furnish evidence obtained under a commission subpoena to:
(1)iia law enforcement agency of this state, another state, or the United States; or
(2)iia prosecuting attorney of a municipality, county, or judicial district of this state, another state, or the United States.
Sec.i2001.708.iiSUBPOENAS ISSUED TO FINANCIAL INSTITUTIONS. A subpoena issued to a financial institution as part of a criminal investigation is not subject to Section 30.007, Civil Practice and Remedies Code.
Sec.i2001.709.iiEFFECT ON CONTESTED CASE. Sections 2001.701, 2001.704, 2001.705, 2001.707, and 2001.708 do not affect the conduct of a contested case under Chapter 2001, Government Code.
SECTIONi75.iiSection 466.003, Government Code, and Sections 2001.057(b), 2001.305, 2001.355, 2001.356, 2001.409(b), and 2001.416(d), Occupations Code, are repealed.
SECTIONi76.ii(a)iiNot later than September 1, 2004, the Texas Lottery Commission shall:
(1)iiadopt the rules and procedures required by Section 466.1005, Government Code, and Subchapters C-1 and I-1, Chapter 2001, Occupations Code, as added by this Act; and
(2)iiadopt the rules required by:
(A)iiSection 466.158(d), Government Code, as added by this Act;
(B)iiSection 2001.3015, Occupations Code, as added by this Act; and
(C)iiSections 2001.101, 2001.451, and 2001.458, Occupations Code, as amended by this Act.
(b)iiNot later than September 1, 2004, the Texas Lottery Commission shall:
(1)iiadopt the comprehensive business plan required by Section 466.026, Government Code, as added by this Act;
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(2)iiadopt the rules required by Section 2001.0555, Occupations Code, as added by this Act; and
(3)iiadopt the administrative penalty schedule and timeline required by Section 2001.6015, Occupations Code, as added by this Act.
SECTIONi77.ii(a) The changes in law made by this Act in the prohibitions or qualifications applying to a member of the Texas Lottery Commission do not affect the entitlement of a member serving on the Texas Lottery Commission immediately before September 1, 2003, to continue to serve and function as a member of the Texas Lottery Commission for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.
(b)iiThe change in law made by this Act to Chapter 467, Government Code, relating to the investigation of a complaint applies only to a complaint filed with the Texas Lottery Commission on or after September 1, 2003. A complaint filed with the commission or a division of the commission before September 1, 2003, is governed by the law as it existed immediately before that date, and the former law is continued in effect for that purpose.
(c)iiThe change in law made by this Act requiring the Texas Lottery Commission to approve a procurement applies only to a procurement or contract made on or after the effective date of this Act. A procurement or contract made before the effective date of this Act is governed by the law in effect when the procurement or contract was made, and the former law is continued in effect for that purpose.
(d)iiThe changes in law made by this Act governing eligibility of a person for a license apply only to the issuance or renewal of a license by the Texas Lottery Commission under Chapter 466, Government Code, as amended by this Act, or Chapter 2001, Occupations Code, as amended by this Act, on or after the effective date of this Act. A license issued by the Texas Lottery Commission under either of those laws before the effective date of this Act is governed by the applicable licensing requirements in effect when the license was last issued or renewed until the license expires or is renewed as provided by Chapter 466, Government Code, as amended by this Act, or Chapter 2001, Occupations Code, as amended by this Act.
(e)iiThe change in law made by this Act to Section 2001.457, Occupations Code, applies to the charitable disbursements made by a licensed authorized organization beginning with disbursements for the second quarter of 2004. A charitable disbursement made by a licensed authorized organization for a quarter before the second quarter of 2004 is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.
SECTIONi78.ii(a) As soon as practicable after the effective date of this Act, the Texas Lottery Commission shall adopt the rules necessary to implement multijurisdiction lottery games in accordance with Subchapter J, Chapter 466, Government Code, as added by this Act.
(b)iiThe Texas Lottery Commission may adopt an emergency rule under Subsection (a) of this section without prior notice or hearing, or with any abbreviated notice and hearing as the commission finds practicable, for the implementation of the change in law made by Subchapter J, for multijurisdiction lottery games, Chapter 466, Government Code. Section 2001.034, Government Code, does not apply to an emergency rule adopted under this section.
4212 78th Legislature — Regular Session 82nd Day
(c)iiNotwithstanding any law to the contrary, including any law enacted during the 78th Legislature, Regular Session, 2003, to promptly implement Subchapter J, Chapter 466, Government Code, as added by this Act, a contract for the acquisition or provision of facilities, supplies, equipment, materials, or services related to the initial operation of multijurisdiction lottery games under these subchapters is not subject to:
(1)iiSubtitle D, Title 10, Government Code;
(2)iiSection 466.101, Government Code;
(3)iiChapter 2161, Government Code; or
(4)iiany competitive bidding requirements or contract requirements provided by any other law or by rules of the Texas Lottery Commission.
SECTIONi79.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.
Floor Amendment No. 4
Amend CSSB 270 (House committee printing) by striking lines 6 through 10 on page 20.
Floor Amendment No. 5
Amend CSSBi270 (House committee report) in SECTION 9 of the bill by striking Subdivision (4), Subsection (a), Section 466.155, Government Code (page 7, line 11, through page 8, line 1), and substituting the following:
(4)iiis a person whose location for the sales agency is:
(A)iia location licensed for games of bingo under Chapter 2001, Occupations Code;
(B)iion land that is owned by:
(i)iithis state; or
(ii)iia political subdivision of this state and on which is located a
public primary or secondary school, an institution of higher education, or an agency
of the state; [or]
(C)iia location for which a person holds a wine and beer retailer's permit, mixed beverage permit, mixed beverage late hours permit, private club registration permit, or private club late hours permit issued under Chapter 25, 28, 29, 32, or 33, Alcoholic Beverage Code; or
(D)iia location:
(i)iiin a facility that shares a common roof or common foundation with a location at which a gambling device, as defined by Section 47.01, Penal Code, is operated or located; or
(ii)iiwithin 150 feet of the facility that shares the common roof or common foundation described by Subparagraph (i); or
Friday, May 30, 2003 SENATE JOURNAL 4213
Floor Amendment No. 8
Amend CSSBi270 (House committee report) as follows:
(1)iiIn SECTION 34 of the bill, amending Section 2001.002, Occupations Code (page 25, lines 24 and 25), strike the introductory language and substitute "Section 2001.002, Occupations Code, is amended by amending Subdivisions (5) and (6) and adding Subdivision (9-a) to read as follows:".
(2)iiIn SECTION 34 of the bill, immediately following amended Subdivision (6), Section 2001.002, Occupations Code (page 26, between lines 23 and 24), insert the following:
(9-a)ii"Electronic pull-tab bingo" means an electronic version of pull-tab bingo that is displayed on a card-minding device in which a person purchases from a point of sale station an electronic ticket face, instead of a ticket made of paper or paper products, that is issued from a finite deal of tickets in which some of the tickets have been designated in advance as winning tickets.
(3)iiAdd the following appropriately numbered SECTIONS and renumber subsequent SECTIONS of the bill accordingly:
SECTIONi____.iiSection 2001.054, Occupations Code, is amended to read as follows:
Sec.i2001.054.iiRULEMAKING AUTHORITY. (a) The commission may adopt rules to enforce and administer this chapter.
(b)iiThe commission has broad authority to adopt rules to administer Sections 2001.409(b) and 2001.4095.
SECTIONi____.iiSection 2001.408, Occupations Code, is amended to read as follows:
Sec.i2001.408.iiOTHER METHODS FOR PLAYING BINGO. Subject to the commission's rules, bingo may be played using a pull-tab bingo ticket or an electronic pull-tab bingo ticket.
SECTIONi____.iiSection 2001.409, Occupations Code, is amended to read as follows:
Sec.i2001.409.iiCARD-MINDING DEVICES. (a) A person may not use a card-minding device:
(1)iito generate [or determine] the random letters, numbers, or other symbols
used in playing the bingo card played with the device's assistance;
(2)iias a receptacle for the deposit of tokens or money in payment for playing the bingo card played with the device's assistance; or
(3)iias a dispenser for the payment of a bingo prize, including coins, paper currency, or a thing of value for the bingo card played with the device's assistance.
(b)iiA person may use a card-minding device to:
(1)iiaccount for and track electronic credits purchased at a point of sale station or won by playing bingo or electronic pull-tab bingo; and
(2)iiexchange electronic credits described by Subdivision (1) through an
electronic communication with a point of sale station for electronic bingo card faces
or electronic pull-tab bingo tickets that may be played by the person during a bingo
occasion. [Not more than 40 percent of the individuals attending a bingo occasion,
4214 78th Legislature — Regular Session 82nd Day
SECTIONi____.iiSubchapter I, Chapter 2001, Occupations Code, is amended by adding Section 2001.4095 to read as follows:
Sec.i2001.4095.iiCARD-MINDING DEVICE FOR DISPLAY OF ELECTRONIC PULL-TAB BINGO TICKET FACE. (a) A card-minding device used to display an electronic pull-tab bingo ticket face must be manufactured in accordance with the specifications provided by commission rule and is subject to testing by the commission.
(b)iiThe commission may audit sales records relating to the sale of electronic pull-tab bingo ticket faces. The commission may investigate a violation or alleged violation of this section.
(c)iiThe commission at any time may inspect a card-minding device used to display an electronic pull-tab bingo ticket face.
(d)iiThe manufacturer of a card-minding device used to display an electronic pull-tab bingo ticket face shall maintain a central communications system or facility to provide the commission with the ability to review and audit electronic pull-tab bingo sales records.
SECTIONi____.iiSection 2001.420(b), Occupations Code, is amended to read as follows:
(b)iiFor bingo games other than pull-tab bingo and electronic pull-tab bingo, a person may not offer or award on a single bingo occasion prizes with an aggregate value of more than $2,500.
SECTIONi____.iiSubchapter I, Chapter 2001, Occupations Code, is amended by adding Section 2001.421 to read as follows:
Sec.i2001.421.iiPRIZE PAYOUT PERCENTAGE. The prize payout percentage for an electronic pull-tab bingo game may not be less than the prize payout percentage established for a paper pull-tab bingo game.
SECTIONi____.iiSubchapter K, Chapter 2001, Occupations Code, is amended by adding Section 2001.5015 to read as follows:
Sec.i2001.5015.iiELECTRONIC PULL-TAB BINGO TAX. (a) A tax is imposed on a manufacturer for each electronic pull-tab bingo ticket provided by the manufacturer to a distributor.
(b)iiThe tax rate is one-quarter of one cent for each electronic pull-tab bingo ticket provided.
SECTIONi____.iiSection 2001.510(a), Occupations Code, is amended to read as follows:
(a)iiIf a license holder fails to make a required return, or if a person conducts
bingo without a license, the commission shall make an estimate of the prizes awarded
at a bingo occasion, [or of] the gross rentals received by a license holder for the rental
of premises, or the number of electronic pull-tab bingo tickets sold. The commission
shall make the estimate for the period in respect to which the license holder or other
person failed to make a return.
SECTIONi____.iiSection 2001.511(a), Occupations Code, is amended to read as follows:
Friday, May 30, 2003 SENATE JOURNAL 4215
(a)iiIf the commission believes that the collection of a gross rental tax, tax on electronic pull-tab bingo tickets, or fee on prizes, an amount of the tax or fee on prizes required to be remitted to the state, or the amount of a determination will be jeopardized by delay, the commission shall make a determination of the tax or fee on prizes or amount of the tax or fee required to be collected, noting the finding of jeopardy on the determination. The determined amount is due and payable immediately.
SECTIONi____.iiSection 2001.512, Occupations Code, is amended to read as follows:
Sec.i2001.512.iiAPPLICATION OF TAX LAWS. (a) Subtitle B, Title 2, Tax Code, applies to the administration, collection, and enforcement of the gross rentals tax imposed under Section 2001.501, the tax on electronic pull-tab bingo tickets imposed under Section 2001.5015, and the fee on prizes imposed under Section 2001.502 except as modified by this chapter.
(b)iiIn applying the provisions of Subtitle B, Title 2, Tax Code, to the gross rentals tax imposed under Section 2001.501, the tax on electronic pull-tab bingo tickets imposed under Section 2001.5015, and the fee on prizes imposed under Section 2001.502 only, the fee on prizes is treated as if it were a tax and the powers and duties assigned to the comptroller under that subtitle are assigned to the commission.
SECTIONi____.iiSection 2001.513(a), Occupations Code, is amended to read as follows:
(a)iiAt any time within three years after a person is delinquent in the payment of an amount of gross rentals tax, tax on electronic pull-tab bingo tickets, or fee on prizes, the commission may collect the amount under this section.
SECTIONi____.iiSection 2001.514(a), Occupations Code, is amended to read as follows:
(a)iiTo secure payment of the tax on gross rentals, the tax on electronic pull-tab bingo tickets, or the fee on prizes imposed under this subchapter, each license holder shall furnish to the commission:
(1)iia cash bond;
(2)iia bond from a surety company chartered or authorized to do business in this state;
(3)iicertificates of deposit;
(4)iicertificates of savings;
(5)iiUnited States treasury bonds;
(6)iisubject to the approval of the commission, an assignment of negotiable stocks or bonds; or
(7)iiother security as the commission considers sufficient.
SECTIONi____.iiThe Texas Lottery Commission shall adopt rules to administer electronic pull-tab bingo and regulate electronic pull-tab minding devices under Chapter 2001, Occupations Code, as amended by this Act, not later than October 1, 2003, and may adopt the initial rules in the manner provided by law for emergency rules.
4216 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 9
Amend Floor Amendment No. 8 by Hilderbran to CSSB 270 as follows:
(1) In Paragraph (2), at the end of the definition of "electronic pull-tab bingo" (page 1, at the end of the line 15) add the following: "The display on the card-minding device may not include images or sounds that resemble spinning wheels or otherwise resemble the display of a slot machine."
(2) In Paragraph (3), in added Subsection (b), Section 2001.054, Occupations Code (page 1, lines 22 and 23), strike "to administer" and substitute "and shall exercise strict control to administer and ensure compliance with".
Floor Amendment No. 10
Amend CSSB 270 (House committee printing) by striking SECTION 35 of the bill, amending Section 2001.055, Occupations Code (page 26, line 24, through page 27, line 5).
Floor Amendment No. 11
Amend Floor Amendment No. 10 by Howard to CSSB 270 by striking the text of the amendment and substituting the following:
(1) In SECTION 35 of the bill, in added Subsection (b), Section 2001.055, Occupations Code (page 27, line 5), strike "and to apply new technology to bingo games".
Floor Amendment No. 12
Amend CSSB 270 (House committee printing) as follows:
(1)iiIn SECTION 65 of the bill, amending Section 2001.454, Occupations Code (page 57, line 3), in the introductory language, strike "2001.454" and substitute "2001.454(a)".
(2)iiIn SECTION 65 of the bill (page 57, line 5), strike "Sec. 2001.454. USE OF NET PROCEEDS FOR CHARITABLE PURPOSES."
(3)iiIn SECTION 65 of the bill, strike amended Subsection (b), Section 2001.454, Occupations Code (page 57, line 9, through page 58, line 9).
(4)iiIn SECTION 67 of the bill, amending Section 2001.458, Occupations Code (page 59, line 13), in the introductory language, strike "amending Subsection (a) and".
(5)iiIn SECTION 67 of the bill, strike amended Subsection (a), Section 2001.458, Occupations Code (page 59, line 15, through page 60, line 11).
Floor Amendment No. 14
Amend CSSBi270 (House committee printing) as follows:
(1)iiIn SECTION 78 of the bill, in Subsection (a) of that SECTION (page 72, line 18), strike "(a)".
(2)iiIn SECTION 78 of the bill, strike Subsections (b) and (c) of that SECTION (page 72, line 23, through page 73, line 15).
Floor Amendment No. 16
Amend CSSB 270 by adding the following appropriately numbered SECTIONS and renumbering the subsequent SECTIONS of the bill accordingly:
Friday, May 30, 2003 SENATE JOURNAL 4217
SECTIONi____.iiSection 466.024(c)(2), Government Code, is amended to read as follows:
(2)ii"Video lottery machine" or "machine" means:
(A)iiany electronic video game machine that, on [upon] insertion of cash
or credit or for any other consideration, is available to play or simulate the play of a
video facsimile of [game, including video] poker, keno, [and] blackjack, or slots; or
(B)iia video device that uses [using] a video display and
microprocessors and is designed, constructed, adapted, or maintained to afford a
person who pays consideration to play or use the machine an opportunity to obtain a
thing of value based solely or in substantial part on chance, including [in which the
player may receive free games or credits that can be redeemed for] cash, coins,
merchandise, gift certificates, [or] tokens, and free games or credits that can be
redeemed for [or that directly dispenses] cash, coins, merchandise, gift certificates, or
tokens.
SECTIONi____.iiThe heading to Subchapter G, Chapter 466, Government Code, is amended to read as follows:
SUBCHAPTER G. OFFENSES, PENALTIES, AND ENFORCEMENT
SECTIONi____.iiSubchapter G, Chapter 466, Government Code, is amended by adding Section 466.318 to read as follows:
Sec.i466.318.iiPROHIBITED VIDEO GAMES. (a) A person commits an offense if the person violates a rule adopted by the commission under Section 466.024(b).
(b)iiAn offense under Subsection (a) is a Class B misdemeanor.
(c)iiVenue for prosecution of an offense under Subsection (a), in addition to venue under other law, is in Travis County.
(d)iiA person who violates a rule adopted by the commission under Section 466.024(b) is liable to the state for a civil penalty in an amount not to exceed $1,000 for each violation. Each act of violation and each day a violation continues is a separate violation for purposes of this subsection.
(e)iiA penalty imposed under Subsection (d) may be recovered by:
(1)iithe county attorney of the county in which the violation occurred; or
(2)iithe attorney general in a suit filed in Travis County.
(f)iiA person who resides or owns real property located within two miles of a place where a violation or threatened violation of a rule adopted by the commission under Section 466.024(b) occurs may bring an action to enjoin a person from continuing the violation or threatened violation.
(g)iiAny person may bring a complaint to the commission, the attorney general, or a prosecuting attorney of an alleged or suspected violation of a rule adopted by the commission under Section 466.024(b).
Floor Amendment No. 17
Amend CSSB 270 as follows:
(1) In SECTION 14 of the bill, in the introductory language (House committee report, page 10, line 11), strike "Subsections (d) and (e)" and substitute "Subsection (d)".
(2) In SECTION 14 of the bill, strike proposed Subsection (e), Section 466.355, Government Code (House committee report, page 10, line 18, through page 11, line 4)
4218 78th Legislature — Regular Session 82nd Day
Floor Amendment No. 18
Amend CSSB 270 by adding the following appropriately numbered section to the bill and renumbering subsequent sections as appropriate:
SECTION ____. (a) Section 466.156, Government Code, is amended to read as follows:
Sec. 466.156. BOND; INSURANCE. (a) Each sales agent shall post a cash bond, surety bond, letter of credit, certificate of deposit, and/or other security approved by the executive director, including the contribution of cash to a pooled bond fund established by the executive director to protect the state from possible losses, including losses of a sales agent due to bankruptcy, theft, or loss of lottery tickets, supplies, or equipment. The amount of the security shall be determined by the executive director and must reflect the possible losses to the state from the operation of the sales agent. The total amount retained in a pooled bond fund established under this subsection may not exceed $5 million. All losses to the state resulting from a sales agent's loss must be paid from the bond fund. The executive director may not charge a sales agent for a loss reimbursed from the bond fund.
(b) The executive director may [also] require a sales agent to maintain insurance
[if necessary] to protect the interests of the state if the sales agent has not complied
with the requirements of Subsection (a).
(b) This section takes effect September 1, 2003.
Floor Amendment No. 19
Amend CSSB 270 by adding the following SECTION and renumbering subsequent SECTIONS of the bill accordingly:
SECTION ____. Section 466.101, Government Code, is amended by adding Subsections (f) through (i) to read as follows:
(f) In awarding a contract under this chapter or evaluating a bid or proposal relating to a contract, the executive director may consider a vendor's economic impact to the state or a political subdivision of the state.
(g) For contracts for which the executive director will consider a vendor's economic impact under Subsection (f), the commission by rule shall prescribe:
(1) the type of documentation a vendor must submit to demonstrate the vendor's potential economic impact; and
(2) the manner and methodology by which the executive director will evaluate a vendor's economic impact.
(h) The methodology developed under Subsection (g) to determine a vendor's economic impact to this state or a political subdivision of this state is subject to audit by the state auditor based on a risk assessment performed by the state auditor and subject to the legislative audit committee's approval for inclusion of the work in the audit plan under Section 321.013(c).
(i) In this section, "economic impact" means the number of:
(1) current employees in this state and the amount of wages being paid to those employees, including any subcontractors' employees and wages; and
(2) full-time equivalent positions to be created in this state and the additional amount of wages to be paid to employees in this state as a result of awarding a contract, including a proposed subcontractor's employees and wages.
Friday, May 30, 2003 SENATE JOURNAL 4219
Floor Amendment No. 20
Amend CSSB 270 by adding the following subsection as follows:
SECTION ____. The TexasOnline Authority and the Texas Lottery Commission shall study the fiscal and administrative impact of offering lottery retail sales via Internet based PIN debit transaction. The study findings shall be reported to the Legislature no later than September 15, 2003.
Floor Amendment No. 23
Substitute Floor Amendment No. 19 to CSSB 270 as follows:
Amend CSSB 270 by adding the following SECTION and renumbering subsequent SECTIONS of the bill accordingly:
SECTION ____. Section 466.101, Government Code, is amended by adding Subsections (f) through (i) to read as follows:
(f) In awarding a contract under this chapter or evaluating a bid or proposal relating to a contract, the executive director may consider a vendor's economic impact to the state or a political subdivision of the state.
Floor Amendment No. 1 on Third Reading
Amend CSSB 270 on third reading by adding the following SECTION and renumbering subsequent SECTIONS accordingly:
SECTION ____. Subchapter C, Chapter 467, Government Code, is amended by adding Section 467.1015 to read as follows:
Sec. 467.1015. COMMISSION EMPLOYEES. The commission or an individual commissioner may employ other personnel as necessary, including executive assistants, to perform the duties of the commission or the duties of the individual commissioner, subject to Chapter 654.
The amendments were read.
Senator Jackson moved that the Senate do not concur in the House amendments, but that a conference committee be appointed to adjust the differences between the two Houses on the bill.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on SB 270 before appointment.
There were no motions offered.
The Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Jackson, Chair; Armbrister, Ratliff, Lucio, and Bivins.
CONFERENCE COMMITTEE ON HOUSE BILL 3588
Senator Armbrister, on behalf of Senator Ogden, called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi3588 and moved that the request be granted.
The motion prevailed without objection.
4220 78th Legislature — Regular Session 82nd Day
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi3588 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Ogden, Chair; Barrientos, Deuell, Shapleigh, and Lindsay.
CONFERENCE COMMITTEE ON HOUSE BILL 3442
Senator Averitt called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi3442 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi3442 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Averitt, Chair; Bivins, Duncan, Barrientos, and Staples.
CONFERENCE COMMITTEE ON HOUSE BILL 2292
Senator Nelson called from the President's table, for consideration at this time, the request of the House for a conference committee to adjust the differences between the two Houses on HBi2292 and moved that the request be granted.
The motion prevailed without objection.
The Presiding Officer asked if there were any motions to instruct the conference committee on HBi2292 before appointment.
There were no motions offered.
Accordingly, the Presiding Officer announced the appointment of the following conferees on the part of the Senate on the bill:iiSenators Nelson, Chair; Janek, Zaffirini, Barrientos, and Bivins.
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 11
Senator Shapiro submitted the following Conference Committee Report:
Austin, Texas
May 29, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi11 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
Friday, May 30, 2003 SENATE JOURNAL 4221
| SHAPIRO | KEEL | |
| ELLIS | E. JONES | |
| DEUELL | BERMAN | |
| ARMBRISTER | GALLEGO | |
| NELSON | ||
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate on Thursday, Mayi29, 2003.
CONFERENCE COMMITTEE REPORT ON
SENATE BILL 283
Senator Jackson submitted the following Conference Committee Report:
Austin, Texas
May 27, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on SBi283 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.
| JACKSON | CHISUM | |
| ELLIS | HAMILTON | |
| WHITMIRE | GUILLEN | |
| NELSON | EISSLER | |
| BRIMER | ||
| On the part of the Senate | On the part of the House |
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas Board of Architectural Examiners, including functions affecting architects, landscape architects, and interior designers; providing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLEi1.iiPROVISIONS AFFECTING THE TEXAS BOARD OF
ARCHITECTURAL EXAMINERS AND RELATED
ADMINISTRATIVE MATTERS
SECTIONi1.01.iiThe heading to Chapter 1051, Occupations Code, is amended to read as follows:
4222 78th Legislature — Regular Session 82nd Day
CHAPTERi1051.iiTEXAS BOARD OF ARCHITECTURAL EXAMINERS;
GENERAL PROVISIONS AFFECTING ARCHITECTS, LANDSCAPE
ARCHITECTS, AND INTERIOR DESIGNERS; PROVISIONS
AFFECTING ONLY ARCHITECTS
SECTIONi1.02.iiChapter 1051, Occupations Code, is amended by adding a heading for a new Part 1 of that chapter to read as follows:
PARTi1.iiGENERAL PROVISIONS; BOARD OF
ARCHITECTURAL EXAMINERS
SECTIONi1.03.iiExisting Subchapters A, C, D, and E, Chapter 1051, Occupations Code, are designated as part of the new Part 1 of Chapter 1051.
SECTIONi1.04.iiSections 1051.001, 1051.002, and 1051.004, Occupations Code, are amended to read as follows:
Sec.i1051.001.iiDEFINITIONS. In this subtitle [chapter]:
(1)ii"Architect" means a person registered under this chapter to engage in the practice of architecture.
(2)ii"Board" means the Texas Board of Architectural Examiners.
(3)ii"Interior design" means the:
(A)iiidentification, research, or development of a creative solution to a problem relating to the function or quality of an interior environment;
(B)iiperformance of a service relating to an interior space, including programming, design analysis, space planning of non-load-bearing interior construction, and application of aesthetic principles, by using specialized knowledge of interior construction, building codes, equipment, materials, or furnishings; or
(C)iipreparation of an interior design plan, specification, or related document about the design of a non-load-bearing interior space.
(4)ii"Interior designer" means a person registered under this subtitle to practice interior design.
(5)ii"Landscape architect" means a person registered under this subtitle to practice landscape architecture.
(6)ii"Landscape architecture":
(A)iimeans the art and science of landscape analysis, landscape planning, and landscape design;
(B)iiincludes the performance of professional services such as consultation, investigation, research, the preparation of general development and detailed site design plans, the preparation of studies, the preparation of specifications, and responsible supervision related to the development of landscape areas for:
(i)iithe planning, preservation, enhancement, and arrangement of land forms, natural systems, features, and plantings, including ground and water forms;
Friday, May 30, 2003 SENATE JOURNAL 4223
(ii)iithe planning and design of vegetation, circulation, walks, and other landscape features to fulfill aesthetic and functional requirements;
(iii)iithe formulation of graphic and written criteria to govern the planning and design of landscape construction development programs, including:
(a)iithe preparation, review, and analysis of master and site plans for landscape use and development;
(b)iithe analysis of environmental and physical considerations related to land use;
(c)iithe preparation of drawings, construction documents, and specifications; and
(d)iiconstruction observation;
(iv)iidesign coordination and review of technical submissions, plans, and construction documents prepared by persons working under the direction of the landscape architect;
(v)iithe preparation of feasibility studies, statements of probable construction costs, and reports and site selection for landscape development and preservation;
(vi)iithe integration, site analysis, and determination of the location of buildings, structures, and circulation and environmental systems;
(vii)iithe analysis and design of:
(a)iisite landscape grading and drainage;
(b)iisystems for landscape erosion and sediment control; and
(c)iipedestrian walkway systems;
(viii)iithe planning and placement of uninhabitable landscape structures, plants, landscape lighting, and hard surface areas;
(ix)iithe collaboration of landscape architects with other professionals in the design of roads, bridges, and structures regarding the functional, environmental, and aesthetic requirements of the areas in which they are to be placed; and
(x)iifield observation of landscape site construction, revegetation, and maintenance; and
(C)iidoes not include:
(i)iitraffic, roadway, or pavement engineering;
(ii)iithe design of utilities;
(iii)iithe engineering or study of hydrologic management of stormwater systems or floodplains;
(iv)iithe making of final plats; or
(v)iia service or function within the practice of architecture, engineering, or public surveying as defined by this chapter or Chapter 1001 or 1071.
4224 78th Legislature — Regular Session 82nd Day
(7)ii"Practice of architecture" means a service or creative work that involves the application of the art and science of developing design concepts, planning for functional relationships and intended uses, and establishing the form, appearance, aesthetics, and construction details for the construction, enlargement, or alteration of a building or environs, the proper application of which requires education, training, and experience in those matters.
Sec.i1051.002.iiEFFECT ON MUNICIPALITY. This subtitle [chapter] does not:
(1)iipreempt a municipal ordinance; or
(2)iirestrict or expand the authority of a municipality.
Sec.i1051.003i[1051.004].iiAPPLICATION OF SUNSET ACT. The Texas
Board of Architectural 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 subtitle [chapter] expires September 1, 2015 [2003].
SECTIONi1.05.iiThe heading to existing Subchapter C, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiBi[C].iiTEXAS BOARD OF
ARCHITECTURAL EXAMINERS
SECTIONi1.06.iiSubsection (a), Section 1051.101, Occupations Code, is amended to read as follows:
(a)iiThe Texas Board of Architectural Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows:
(1)iifour architect members registered under this chapter;
(2)iione interior designer member registered under Chapter 1053;
(3)iione landscape architect member registered under Chapter 1052; and
(4)iithree members who represent the public, at least one of whom is a person with a physical disability.
SECTIONi1.07.iiSection 1051.103, Occupations Code, is amended to read as follows:
Sec.i1051.103.iiMEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)iiIn
this section, "Texas trade association" means a [nonprofit,] 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 [An officer, employee, or paid consultant of a Texas trade
association in the field of architecture, interior design, or landscape architecture] may
not be a member of the board and may not be a board [an] 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 [of the board who is exempt from the state's position classification
plan or is compensated at or above the amount prescribed by the General
Appropriations Act for salary group B9 of the position classification salary schedule.
[(c)iiA] person [who] is [the spouse of] an officer, employee [manager], or paid
consultant of a Texas trade association in the field of architecture, interior design, or
landscape architecture; or
Friday, May 30, 2003 SENATE JOURNAL 4225
(2)iithe person's spouse is an officer, manager, or paid consultant of a Texas
trade association in the field of architecture, interior design, or landscape architecture
[may not be a member of the board and may not be an employee of the board who is
exempt from the state's position classification plan or is compensated at or above the
amount prescribed by the General Appropriations Act for salary group B9 of the
position classification salary schedule].
(c)i[(d)]iiA person may not be a [serve as a board] member of the board or act as
the general counsel to the board 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 [board's] operation of the board.
SECTIONi1.08.iiSubsections (a) and (c), Section 1051.105, Occupations Code, are amended to read as follows:
(a)iiIt 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 1051.101 [or 1051.102];
(2)iidoes not maintain during service on the board the qualifications required
by Section 1051.101 [or 1051.102];
(3)iiis ineligible for membership under [violates a prohibition established by]
Section 1051.102 or 1051.103;
(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 half of the regularly scheduled board meetings
that the member is eligible to attend during a calendar year without an excuse
approved[, unless the absence is excused] by a majority vote of the board.
(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.
SECTIONi1.09.iiExisting Subchapter C, Chapter 1051, Occupations Code, is amended by adding Section 1051.112 to read as follows:
Sec.i1051.112.iiTRAINING. (a)iiA 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 subtitle;
(2)iithe programs operated by the board;
(3)iithe role and functions of the board;
(4)iithe rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5)iithe current budget for the board;
(6)iithe results of the most recent formal audit of the board;
(7)iithe requirements of:
4226 78th Legislature — Regular Session 82nd Day
(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 board 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.
SECTIONi1.10.iiThe heading to existing Subchapter D, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiCi[D].iiEXECUTIVE DIRECTOR AND PERSONNEL
SECTIONi1.11.iiSections 1051.153, 1051.154, and 1051.156, Occupations Code, are amended to read as follows:
Sec.i1051.153.iiDIVISION OF RESPONSIBILITIES. The board shall develop
and implement policies that clearly separate the policymaking [define the respective]
responsibilities of the board and the management responsibilities of the executive
director and the staff of the board.
Sec.i1051.154.iiQUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION. The executive director or the executive director's designee [board]
shall provide[, as often as necessary,] to [its] members of the board and to agency
employees, as often as necessary, information regarding the requirements [their:
[(1)iiqualifications] for office or employment under this chapter, including
information regarding a person's[; and
[(2)]iiresponsibilities under applicable laws relating to standards of conduct
for state officers or employees.
Sec.i1051.156.iiEQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT.
(a)iiThe executive director or the executive director's designee shall prepare and
maintain a written policy statement that implements a program [to ensure
implementation] of [an] equal employment opportunity to ensure that [program under
which] all personnel decisions [transactions] 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, [appointment,] training, and promotion of personnel, that show the intent of
the board to avoid the unlawful employment practices described by Chapter 21, Labor
Code; and
(2)iian [a comprehensive] analysis of the extent to which the composition of
the board's personnel is in accordance with [board workforce that meets] federal and
state law and a description of reasonable methods to achieve compliance with federal
and state law [guidelines;
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[(3)iiprocedures by which a determination can be made of significant
underuse in the board workforce of all persons for whom federal or state guidelines
encourage a more equitable balance; and
[(4)iireasonable methods to appropriately address those areas of significant
underuse].
(c)iiThe [(b)iiA] policy statement [prepared under Subsection (a)] must:
(1)ii[cover an annual period;
[(2)]iibe updated [at least] annually;
(2)iibe reviewed by the Commission on Human Rights for compliance with Subsection (b)(1); and
(3)iibe filed with the governor's office [governor].
[(c)iiThe governor shall deliver a biennial report to the legislature based on the
information received under Subsection (b). The report may be made separately or as a
part of other biennial reports made to the legislature.]
SECTIONi1.12.iiExisting Subchapter D, Chapter 1051, Occupations Code, is amended by adding Section 1051.157 to read as follows:
Sec.i1051.157.iiINFORMATION ON STATE EMPLOYEE INCENTIVE PROGRAM. The executive director or the executive director's designee shall provide to board employees information and training on the benefits and methods of participation in the state employee incentive program under Subchapter B, Chapter 2108, Government Code.
SECTIONi1.13.iiThe heading to existing Subchapter E, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiDi[E].iiBOARD POWERS AND DUTIES
SECTIONi1.14.iiSection 1051.202, Occupations Code, is amended to read as follows:
Sec.i1051.202.iiGENERAL RULEMAKING AUTHORITY. The board shall
adopt reasonable rules and bylaws and prescribe forms as necessary to administer or
enforce this subtitle [chapter], including rules regulating the practices [practice] of
architecture, landscape architecture, and interior design.
SECTIONi1.15.iiSubsections (a) and (b), Section 1051.203, Occupations Code, are amended to read as follows:
(a)iiThe [Except as provided by Subsection (b) or (c), the] board may not adopt
rules [a rule] restricting advertising or competitive bidding by a certificate holder
except [person regulated by the board.
[(b)iiThe board may adopt rules restricting advertising or competitive bidding] to
prohibit [a] false, misleading, or deceptive practices [practice].
(b)iiIn its rules to prohibit false, misleading, or deceptive practices, the board [A
rule adopted under this subsection] may not include a rule that:
(1)iirestricts [restrict] the [person's] use of any advertising medium;
(2)iirestricts the use of a certificate holder's [restrict the person's] personal
appearance or [the use of the person's] voice in an advertisement;
(3)iirelates [relate] to the size or duration of an advertisement by the
certificate holder [person]; or
(4)iirestricts [restrict] the certificate holder's [person's] advertisement under
a trade name.
4228 78th Legislature — Regular Session 82nd Day
SECTIONi1.16.iiThe heading to existing Section 1051.207, Occupations Code, is amended to read as follows:
Sec.i1051.204i[1051.207].iiSUBPOENA.
SECTIONi1.17.iiSubsection (a), existing Section 1051.207, Occupations Code, is amended to read as follows:
(a)iiThe board may request and, if necessary, compel by subpoena:
(1)iithe attendance of witnesses for examination under oath; and
(2)iithe production for inspection or copying of records, documents, and
other evidence relevant to the investigation of an alleged violation of this subtitle
[chapter].
SECTIONi1.18.iiThe heading to existing Section 1051.208, Occupations Code, is amended to read as follows:
Sec.i1051.205i[1051.208].iiPUBLIC RECORDS.
SECTIONi1.19.iiExisting Section 1051.208, Occupations Code, is amended by amending Subsection (b) and adding Subsection (d) to read as follows:
(b)iiThe records must include[:
[(1)]iia record of:
(1)i[(A)]iieach issuance or renewal of a certificate of registration; and
(2)i[(B)]iieach refusal to issue or renew a certificate of registration[;
[(2)iithe name and, if known, the place of residence of each architect; and
[(3)iithe date and serial number of the architect's certificate of registration].
(d)iiThe board shall maintain records or an official roster showing:
(1)iithe name and, if known, the address of each person registered under this subtitle; and
(2)iithe date and registration number of each certificate of registration issued under this subtitle.
SECTIONi1.20.iiThe heading to existing Section 1051.209, Occupations Code, is amended to read as follows:
Sec.i1051.206i[1051.209].iiBOARD SEAL.
SECTIONi1.21.iiExisting Subchapter E, Chapter 1051, Occupations Code, is amended by adding Sections 1051.207 through 1051.213 to read as follows:
Sec.i1051.207.iiRULES ON CONSEQUENCES OF CRIMINAL CONVICTION. The board shall adopt rules as necessary to comply with Chapter 53.
Sec.i1051.208.iiSTANDARDS OF CONDUCT. The board by rule shall establish standards of conduct for persons regulated under this subtitle.
Sec.i1051.209.iiATTORNEY GENERAL AS LEGAL ADVISOR. The attorney general shall act as legal advisor to the board and shall provide legal assistance to enforce this subtitle. This section does not relieve a local prosecuting attorney of any duty under the law.
Sec.i1051.210.iiTECHNOLOGY POLICY. The board shall develop and implement a policy that requires the executive director and board employees to research and propose appropriate technological solutions to improve the board's ability to perform its functions. The technological solutions must:
(1)iiensure that the public is able to easily find information about the board through the Internet;
(2)iiensure that persons who want to use the board's services are able to:
Friday, May 30, 2003 SENATE JOURNAL 4229
(A)iiinteract with the board through the Internet; and
(B)iiaccess any service that can be provided effectively through the Internet; and
(3)iibe cost-effective and be developed through the board's planning process.
Sec.i1051.211.iiNEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION. (a)iiThe 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 board rules; and
(2)iiappropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the board's jurisdiction.
(b)iiThe board'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 board.
Sec.i1051.212.iiJOINT ADVISORY COMMITTEE ON THE PRACTICES OF ENGINEERING, ARCHITECTURE, AND LANDSCAPE ARCHITECTURE. (a)iiThe Joint Advisory Committee on the Practices of Engineering, Architecture, and Landscape Architecture is an advisory committee to the board and to the Texas Board of Professional Engineers. The advisory committee consists of:
(1)iithree members of the board and one practicing accredited architect appointed by the board; and
(2)iithree members of the Texas Board of Professional Engineers and one practicing accredited architectural engineer appointed by that board.
(b)iiMembers of the advisory committee serve staggered six-year terms, with the terms of one or two members appointed by the board and one or two members appointed by the Texas Board of Professional Engineers expiring each odd-numbered year.
(c)iiThe advisory committee shall meet at least twice a year.
(d)iiThe advisory committee shall work to resolve issues that result from the overlap between activities that constitute the practices of engineering and architecture and those that constitute the practices of engineering and landscape architecture. The advisory committee shall assist each agency in protecting the public rather than advancing the interests of either agency or the profession it regulates.
(e)iiThe advisory committee shall issue advisory opinions to the board and to the Texas Board of Professional Engineers on matters relating to the practice of engineering and the practice of architecture or landscape architecture, including:
(1)iiopinions on whether certain activities constitute the practice of engineering or the practice of architecture or landscape architecture;
4230 78th Legislature — Regular Session 82nd Day
(2)iispecific disciplinary proceedings initiated by either agency; and
(3)iithe need for persons working on particular projects to be registered by the board or licensed by the Texas Board of Professional Engineers.
(f)iiIf the advisory committee issues an advisory opinion to the board or the Texas Board of Professional Engineers on a matter, that agency shall notify the committee of the final action taken with regard to the matter. The advisory committee shall consider the action taken by the agency on the matter in any advisory opinion subsequently issued by the committee on a related matter.
(g)iiThe board and the Texas Board of Professional Engineers shall enter into a memorandum of understanding regarding the advisory committee that includes the composition and purpose of the committee.
Sec.i1051.213.iiRECOMMENDATION OF REHABILITATION CODES AND PROVISIONS. The board may recommend to municipalities a rehabilitation code and prescriptive provisions for rehabilitation for adoption under Section 214.215, Local Government Code. In making its recommendations, the board may consider rehabilitation codes published by developers of national model codes or the American National Standards Institute and prescriptive provisions for rehabilitation included in a code published by developers of national model codes or the American National Standards Institute.
ARTICLEi2.iiPROVISIONS AFFECTING ARCHITECTS, LANDSCAPE
ARCHITECTS, AND INTERIOR DESIGNERS
SECTIONi2.01.iiChapter 1051, Occupations Code, is amended by adding a heading for a new Part 2 of that chapter to read as follows:
PARTi2.iiGENERAL PROVISIONS APPLYING TO ARCHITECTS,
LANDSCAPE ARCHITECTS, AND INTERIOR DESIGNERS
SECTIONi2.02.iiExisting Subchapters F, H, J, and K, Chapter 1051, Occupations Code, are designated as part of the new Part 2 of Chapter 1051.
SECTIONi2.03.iiThe heading to existing Subchapter F, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiEi[F].iiPUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
SECTIONi2.04.iiThe heading to Section 1051.251, Occupations Code, is amended to read as follows:
Sec.i1051.251.iiPUBLIC INTEREST INFORMATION; DISPLAY OF CERTIFICATE.
SECTIONi2.05.iiSection 1051.251, Occupations Code, is amended by amending Subsection (a) and adding Subsections (c) and (d) to read as follows:
(a)iiThe board shall prepare information of public interest describing the
functions of the board and the procedures by which complaints are filed with and
resolved by the board. The information must include information for prospective
applicants regarding the qualifications and requirements for registration under this
subtitle [chapter].
(c)iiIn each written contract in which a person registered under this subtitle agrees to practice the person's profession in this state, the person shall include the name, mailing address, and telephone number of the board and a statement that the board has jurisdiction over a person registered under this subtitle.
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(d)iiA person registered under this subtitle shall prominently display the person's certificate of registration in the person's place of business.
SECTIONi2.06.iiSections 1051.252 and 1051.253, Occupations Code, are amended to read as follows:
Sec.i1051.252.iiCOMPLAINTS. (a)iiThe board by rule shall establish a comprehensive procedure for receiving and adjudicating complaints from consumers and service recipients. The rules must address each phase of the complaint process, including complaint intake, preliminary evaluation, investigation, adjudication, sanctions, and public disclosure.
(b)iiThe board [by rule] shall establish methods by which consumers and service
recipients are notified of the name, mailing address, and telephone number of the
board for the purpose of directing complaints to the board. The board may provide for
that notice:
(1)iion each registration form, application, or written contract for services of
a person regulated under this subtitle [chapter];
(2)iion a sign prominently displayed in the place of business of each person
regulated under this subtitle [chapter]; or
(3)iiin a bill for service provided by a person regulated under this subtitle
[chapter].
Sec.i1051.253.iiCOMPLAINT INFORMATION. (a)iiThe board shall maintain a
[keep an information] file on [about] each complaint filed with the board that the
board has authority to resolve. The file must include:
(1)iithe name of the person who filed the complaint unless the complaint is filed anonymously;
(2)iithe date the complaint is received by the board;
(3)iithe subject matter of the complaint;
(4)iithe name of each person contacted in relation to the complaint;
(5)iia summary of the results of the review or investigation of the complaint; and
(6)iian explanation of the reason the file was closed, if the board closed the file without taking action other than to investigate the complaint.
(b)iiThe board shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the board's policies and procedures relating to complaint investigation and resolution.
(c)iiThe [If a written complaint is filed with the board that the board has the
authority to resolve, the] board, at least quarterly [and] until final disposition of the
complaint, shall notify the person filing [parties to] the complaint and each person
who is a subject of the complaint of the status of the investigation [complaint] unless
the notice would jeopardize an [undercover] investigation.
SECTIONi2.07.iiSubsection (a), Section 1051.254, Occupations Code, is amended to read as follows:
(a)iiThe 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 board.
SECTIONi2.08.iiChapter 1051, Occupations Code, is amended by adding a new Subchapter F to the new Part 2 of that chapter to read as follows:
4232 78th Legislature — Regular Session 82nd Day
SUBCHAPTERiF.iiGENERAL REGISTRATION REQUIREMENTS
Sec.i1051.301.iiADMINISTRATION OF EXAMINATION TO DISABLED APPLICANTS. The board by rule shall ensure that an examination under this subtitle is administered to applicants with disabilities in compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.) and its subsequent amendments.
Sec.i1051.302.iiEXAMINATION FEE. Notwithstanding Section 2113.203, Government Code, the board may delegate the collection of any examination fee prescribed by the board to the person who conducts the examination.
Sec.i1051.303.iiREFUND POLICY. The board by rule shall adopt a comprehensive refund policy for applicants who are not able to take an examination under this subtitle after paying the examination fee. The comprehensive refund policy must include:
(1)iia list of the circumstances under which the board will refund the examination fee to an applicant who does not take the examination;
(2)iithe required documentation to support a refund request;
(3)iithe deadline for applying for a refund; and
(4)iithe amount of the examination fee the board may retain to cover administrative costs.
Sec.i1051.304.iiEXAMINATION RESULTS. (a)iiNot later than the 30th day after the date a person takes an examination under this subtitle, the board shall notify the person of the results of the examination.
(b)iiIf an examination is graded or reviewed by a testing service:
(1)iithe board shall notify the person of the results of the examination not later than the 14th day after the date the board receives the results from the testing service; and
(2)iiif notice of the examination results will be delayed for longer than 90 days after the examination date, the board shall notify the person of the reason for the delay before the 90th day.
(c)iiThe board may require a testing service to notify a person of the results of the person's examination.
(d)iiIf requested in writing by a person who fails an examination administered under this subtitle, the board shall provide the person with an analysis of the person's performance on the examination.
Sec.i1051.305.iiRECIPROCITY. (a)iiThe board may waive any prerequisite to obtaining a certificate of registration under this subtitle for an applicant who holds a license or certificate of registration issued by another jurisdiction:
(1)iithat has licensing or registration requirements substantially equivalent to those of this state; or
(2)iiwith which this state has a reciprocity agreement.
(b)iiThe board may make an agreement, subject to the approval of the governor, with another state to allow for licensing by reciprocity.
(c)iiAn applicant under this section must:
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(1)iiapply in the same manner and form as any other applicant under this subtitle, except that the application must be accompanied by a fee in an amount set by the board as reasonable and necessary to cover the cost of processing and investigating the application and issuing the certificate of registration; and
(2)iiprovide the board with documents and other evidence that substantiates the applicant's qualifications.
Sec.i1051.306.iiFIRM REGISTRATION. The board by rule may require a firm, partnership, corporation, or association that engages in the practice of architecture, landscape architecture, or interior design to register with the board under this subtitle.
Sec.i1051.307.iiROSTER OF APPLICANTS. The board shall maintain a roster of all persons who apply for a certificate of registration under this subtitle. The roster must include the following information about each applicant:
(1)iithe applicant's name, address, and age;
(2)iithe date the applicant filed the application;
(3)iithe applicant's place of business;
(4)iithe applicant's educational and other qualifications;
(5)iiwhether the applicant took the examination;
(6)iiwhether the board issued a certificate of registration to the applicant or rejected the application;
(7)iithe date of the board's action on the application; and
(8)iiany other information the board considers necessary.
SECTIONi2.09.iiThe heading to existing Subchapter H, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiGi[H].iiRENEWAL OF CERTIFICATE OF REGISTRATION
SECTIONi2.10.iiSections 1051.351 through 1051.354, Occupations Code, are amended to read as follows:
Sec.i1051.351.iiANNUAL RENEWAL REQUIRED. (a)iiA person who is
otherwise eligible to renew a certificate of registration under this subtitle may renew
an unexpired certificate by paying the required renewal fee to the board before the
expiration date of the certificate. A person whose certificate of registration has expired
may not engage in activities that require registration until the certificate of registration
has been renewed [An original certificate of registration is valid for the balance of the
current registration year and may be renewed annually. A certificate of registration
that has been renewed expires on the first anniversary of the renewal date].
(b)iiThe board by rule may adopt a system under which certificates of
registration expire on various dates during the year. [The board shall adjust the date
for mailing notice of expiration and the period for renewal according to the system
adopted by the board under this subsection.]
(c)iiFor the [a] year in which the certificate of registration expiration date is
changed, the board shall prorate renewal fees [shall be prorated] on a monthly basis so
that each certificate holder pays only that portion of the registration fee that is
allocable to the number of months during which the certificate is valid. On renewal of
the certificate of registration on the new expiration date, the total registration renewal
fee is payable.
4234 78th Legislature — Regular Session 82nd Day
Sec.i1051.352.iiNOTICE OF EXPIRATION. Not later than the 30th [31st] day
before the [expiration] date [of] a person's certificate of registration is scheduled to
expire, the board shall send written notice of the impending expiration to the person at
the person's last known address according to the records of the board [records].
Sec.i1051.353.iiPROCEDURE FOR RENEWAL. (a)iiA person may renew an
unexpired certificate of registration by[:
[(1)iipaying the required renewal fee to the board before the expiration date;
and
[(2)]iisubmitting proof satisfactory to the board of compliance with the
board's continuing education requirement.
(b)iiA person whose certificate of registration has been expired for 90 days or
less [than one year] may renew the [person's] certificate [of registration] by[:
[(1)]iipaying to the board a[:
[(A)iiany unpaid] renewal fee that is equal to 1-1/2 times the normally
required renewal fee[; and
[(B)iia penalty fee in an amount determined by the board; and
[(2)iisubmitting proof satisfactory to the board of compliance with the
board's continuing education requirement].
(c)iiA [The board may set a penalty fee for a] person whose certificate of
registration has been expired for more [less] than 90 days [in an amount that is
different from the penalty fee for a person whose certificate of registration has been
expired for longer than 90 days] but less than one year may renew the certificate by
paying to the board a renewal fee equal to two times the normally required renewal
fee.
(d)iiA person whose [The board shall issue a certificate of renewal of a person's]
certificate of registration has been expired for one year or more may not renew the
certificate. The person may obtain a new certificate of registration by complying with
the requirements and procedures, including the examination requirements, for
obtaining an original certificate [on receipt of:
[(1)iithe required fees, as provided by this section; and
[(2)iithe required proof of compliance with the board's continuing education
requirement].
(e)iiA person who was registered in this state, moved to another state, and is
currently licensed or registered and has been in practice in the other state for the two
years preceding the date of the application may obtain a new certificate of registration
without reexamination. The person must pay to the board a fee that is equal to two
times the normally required renewal fee for the certificate of registration [If a person's
certificate of registration has been expired for one year or more, the board may revoke
the certificate of registration and enter the revocation in its official records. The board
may require an applicant for reinstatement of a certificate of registration revoked
under this subsection to pass an examination prescribed by the board. If the person
passes the examination, the person's certificate of registration may be reinstated on
receipt of a fee in an amount determined by the board].
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Sec.i1051.354.iiFEE EXEMPTION FOR MILITARY PERSONNEL. (a)iiA
person required to register under this subtitle [An architect] who is on active duty as a
member of the United States military is exempt from the payment of any fee during
the person's term of service if the person:
(1)iiis in good standing as an architect, landscape architect, or interior designer in this state; or
(2)iiwas in good standing as an architect, landscape architect, or interior designer in this state at the time the person entered into military service.
(b)iiA person who is exempt from payment of a fee under Subsection (a):
(1)iiis exempt for the remainder of the fiscal year during which the person's active duty status expires; and
(2)iiis entitled to have the person's name continued on the list of architects, landscape architects, or interior designers.
SECTIONi2.11.iiSection 1051.355, Occupations Code, is amended by amending Subsections (a), (b), and (c) and adding Subsection (e) to read as follows:
(a)iiThe board by rule shall establish a procedure by which a person who is
registered under this subtitle [an architect] may place the person's certificate of
registration on inactive status. The person must apply for inactive status, on a form
prescribed by the board, before the person's certificate of registration expires.
(b)iiA person whose certificate of registration is on inactive status must pay an annual renewal fee on a date and in a manner prescribed by board rule. The board shall prescribe the renewal fee under this subsection in an amount equal to the sum of:
(1)iithe amount determined by the board as reasonable and necessary to cover the costs of administering this section; and
(2)iiexcept as provided by Subsection (e), the additional amount required
under Section 1051.651(b)(1)(B) [1051.204(b)(1)(B)] for the examination fee
scholarship program.
(c)iiA person whose certificate of registration is on inactive status may not
perform any activity regulated under this subtitle [chapter].
(e)iiThe additional amount of the renewal fee described by Subsection (b)(2) does not apply to a person registered under Chapter 1052 or 1053.
SECTIONi2.12.iiSubsections (a) and (d), Section 1051.356, Occupations Code, are amended to read as follows:
(a)iiThe board shall recognize, prepare, or administer [require] continuing
education programs for its certificate holders. A certificate holder must participate in
the programs to the extent required by the board to keep the person's [as a condition
for renewal of a] certificate of registration.
(d)iiA person is exempt from the continuing education requirements of this
section if the person is, as of September 1, 1999, engaged in teaching the subject
matter for which the person is registered under this subtitle [architecture] as a full-time
faculty member or other permanent employee of an institution of higher education, as
defined by Section 61.003, Education Code.
SECTIONi2.13.iiChapter 1051, Occupations Code, is amended by adding a new Subchapter H to the new Part 2 of that chapter to read as follows:
4236 78th Legislature — Regular Session 82nd Day
SUBCHAPTERiH.iiGENERAL DISCIPLINARY PROCEDURES
Sec.i1051.401.iiRIGHT TO HEARING; APPEAL. (a)iiIf the board proposes to suspend, revoke, or refuse to renew a person's certificate of registration, the person is entitled to a hearing. The hearing shall be held by an administrative law judge of the State Office of Administrative Hearings.
(b)iiThe board shall prescribe procedures by which a decision to suspend or revoke or a refusal to renew a certificate of registration is made by or is appealable to the board.
(c)iiA hearing under this section is a contested case subject to Chapter 2001, Government Code, and must be conducted under rules enacted by the State Office of Administrative Hearings under Chapter 2003, Government Code.
Sec.i1051.402.iiPUBLICATION OF DISCIPLINARY ORDERS AND SANCTIONS. The board by rule shall provide for the publication of all disciplinary orders and sanctions imposed by the board under this subtitle. A certificate holder may not negotiate with the board to keep the board from publishing the settlement of a disciplinary action.
Sec.i1051.403.iiREINSTATEMENT. The board may issue or reinstate a certificate of registration under this section to an applicant who:
(1)iipays all fees and costs incurred by the board as a result of any proceeding that led to the denial, revocation, or suspension; and
(2)iipresents evidence to support the issuance or reinstatement of the certificate.
SECTIONi2.14.iiThe heading to existing Subchapter J, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiIi[J].iiADMINISTRATIVE PENALTY
SECTIONi2.15.iiSection 1051.451, Occupations Code, is amended to read as follows:
Sec.i1051.451.iiIMPOSITION OF ADMINISTRATIVE PENALTY. The board
may impose an administrative penalty on a person who engages in conduct for which
the person is subject to disciplinary action under this subtitle [Subchapter I],
regardless of whether the person holds a certificate of registration issued under this
subtitle [chapter].
SECTIONi2.16.iiSection 1051.452, Occupations Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:
(a)iiThe amount of an administrative penalty may not exceed $5,000 [$1,000].
(c)iiThe board by rule shall adopt an administrative penalty schedule for violations of this subtitle or board rules to ensure that the amounts of penalties imposed are appropriate to the violation. The board must provide the administrative penalty schedule to the public on request.
SECTIONi2.17.iiThe heading to existing Subchapter K, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiJi[K].iiOTHER PENALTIES AND
ENFORCEMENT PROVISIONS
SECTIONi2.18.iiSection 1051.501, Occupations Code, is amended to read as follows:
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Sec.i1051.501.iiGENERAL ENFORCEMENT AUTHORITY. (a)iiA violation of
this subtitle [chapter] shall be reported to the board.
(b)iiThe board shall ensure that enforcement action is taken against a person who
violates this subtitle [chapter].
SECTIONi2.19.iiSubsection (a), Section 1051.502, Occupations Code, is amended to read as follows:
(a)iiThe board may bring an action in its name to enjoin or restrain a person from
violating this subtitle [chapter], a rule adopted under this subtitle [chapter], or another
state statute or rule relating to the professions regulated under this subtitle [practice of
architecture].
SECTIONi2.20.iiSection 1051.504, Occupations Code, is amended to read as follows:
Sec.i1051.503i[1051.504].iiCUMULATIVE EFFECT OF PROVISIONS.iiAn
action or penalty authorized by this subtitle [subchapter] is in addition to any other
action or penalty provided by law.
SECTIONi2.21.iiExisting Subchapter K, Chapter 1051, Occupations Code, is amended by adding Sections 1051.504 and 1051.505 to read as follows:
Sec.i1051.504.iiCEASE AND DESIST ORDER. (a)iiIf it appears to the board that a person who is not registered under this subtitle is violating or has violated this subtitle, a rule adopted under this subtitle, or another state statute or rule relating to the practice of architecture, landscape architecture, or interior design, the board after providing to the person notice and the opportunity for a hearing may issue a cease and desist order prohibiting the conduct described in the notice.
(b)iiIf the person does not request a hearing before the 22nd day after the date of receiving notice under Subsection (a), the board may:
(1)iiissue a cease and desist order; and
(2)iirefer the violation to the attorney general for further action.
(c)iiIf the person requests a hearing before the 22nd day after the date of receiving notice under Subsection (a), the board shall hold the hearing not later than the 30th day after the date the board receives the request for the hearing.
(d)iiA hearing under this section is subject to Chapter 2001, Government Code.
(e)iiThe board shall adopt rules necessary to implement this section.
Sec.i1051.505.iiRESTITUTION. (a)iiThe board may order a person registered under this subtitle to pay restitution to a consumer instead of or in addition to assessing an administrative penalty under this chapter.
(b)iiThe amount of restitution ordered by the board may not exceed the amount the consumer paid the person for a service regulated under this subtitle. The board may not include an estimation of other damages or harm in a restitution order.
ARTICLEi3.iiPROVISIONS AFFECTING ONLY ARCHITECTS
SECTIONi3.01.iiChapter 1051, Occupations Code, is amended by adding a heading for a new Part 3 of that chapter to read as follows:
PARTi3.iiPROVISIONS APPLYING ONLY TO ARCHITECTS
SECTIONi3.02.iiExisting Subchapters B, G, and I, Chapter 1051, Occupations Code, are designated as a part of the new Part 3 of Chapter 1051.
SECTIONi3.03.iiChapter 1051, Occupations Code, is amended by adding a new Subchapter K to the new Part 3 of that chapter to read as follows:
4238 78th Legislature — Regular Session 82nd Day
SUBCHAPTERiK.iiGENERAL PROVISIONS: ARCHITECTS
Sec.i1051.551.iiENFORCEMENT BY CERTAIN PUBLIC OFFICIALS. (a)iiA public official of this state or of a political subdivision of this state who is responsible for enforcing laws that affect the practice of architecture may accept an architectural plan, specification, or other related document only if the plan, specification, or document is prepared by an architect or by a person acting under the supervision of an architect, as evidenced by the architect's seal.
(b)iiSubsection (a) does not apply to a plan, specification, or document that is subject to an exemption from this chapter.
SECTIONi3.04.iiThe heading to existing Subchapter B, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiLi[B].iiEXEMPTIONS
SECTIONi3.05.iiThe heading to Section 1051.051, Occupations Code, is amended to read as follows:
Sec.i1051.601i[1051.051].iiACTIVITIES OF LICENSED ENGINEER.
SECTIONi3.06.iiThe heading to Section 1051.052, Occupations Code, is amended to read as follows:
Sec.i1051.602i[1051.052].iiACTIVITIES OF ARCHITECT OR ENGINEER
EMPLOYEE.
SECTIONi3.07.iiSection 1051.053, Occupations Code, is amended to read as follows:
Sec.i1051.603i[1051.053].iiLANDSCAPE ARCHITECTURE. This part
[chapter] does not:
(1)iilimit the practice of landscape architecture; or
(2)iiprohibit the use of the title "Landscape Architect" by a qualified person.
SECTIONi3.08.iiSection 1051.054, Occupations Code, is amended to read as follows:
Sec.i1051.604i[1051.054].iiINTERIOR DESIGN. This part [chapter] does not:
(1)iilimit the practice of interior design; or
(2)iiprohibit the use of the title "Interior Designer" by a qualified person.
SECTIONi3.09.iiThe heading to Section 1051.055, Occupations Code, is amended to read as follows:
Sec.i1051.605i[1051.055]. EMPLOYEE OF CERTAIN UTILITIES OR
AFFILIATES.
SECTIONi3.10.iiSubsection (b), existing Section 1051.055, Occupations Code, is amended to read as follows:
(b)iiThis chapter does not limit the use of a job title or personnel classification by an employee described by Subsection (a) if the employee does not use:
(1)iithe title or classification in connection with an offer to the public to perform architectural services; and
(2)iia name, title, or other word that tends to convey the impression that a person not registered as an architect under this chapter is offering to the public to perform architectural services.
SECTIONi3.11.iiThe heading to Section 1051.056, Occupations Code, is amended to read as follows:
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Sec.i1051.606i[1051.056].iiACTIVITIES OF CERTAIN PERSONS NOT
REPRESENTED TO BE ARCHITECTS.
SECTIONi3.12.iiSubsection (a), existing Section 1051.056, Occupations Code, is amended to read as follows:
(a)iiThis chapter does not apply to a person who does not represent that the person is an architect or architectural designer, or use another business or professional title that uses a form of the word "architect," and who:
(1)iiengages in or is employed in the practice of architecture solely as an officer or employee of the United States;
(2)iiis a legally qualified architect residing in another state or country who:
(A)iidoes not open or maintain an office in this state; and
(B)iicomplies with the requirements of Subsection (b);
(3)iiprepares architectural plans and specifications for or observes or supervises the alteration of a building, unless the alteration involves a substantial structural or exitway change to the building; or
(4)iiprepares the architectural plans and specifications for or observes or supervises the construction, enlargement, or alteration of a privately owned building that is:
(A)iia building used primarily for:
(i)iifarm, ranch, or agricultural purposes; or
(ii)iistorage of raw agricultural commodities;
(B)iia single-family or dual-family dwelling or a building or appurtenance associated with the dwelling;
(C)iia multifamily dwelling not exceeding a height of two stories and
not exceeding 16 units per building; [or]
(D)iia commercial building that does not exceed [exceeding] a height of
two stories or [and not exceeding] a square footage of 20,000 square feet; or
(E)iia warehouse that has limited public access.
SECTIONi3.13.iiChapter 1051, Occupations Code, is amended by adding a new Subchapter M to the new Part 3 of that chapter to read as follows:
SUBCHAPTERiM.iiBOARD POWERS AND DUTIES: ARCHITECTS
Sec.i1051.651.iiFEES. (a)iiThe board may set a fee for a board action involving an administrative expense in an amount that is reasonable and necessary to cover the cost of administering this chapter, unless the amount of the fee is set by this chapter or by the General Appropriations Act.
(b)iiThe board shall set the required renewal fee for:
(1)iia resident of this state in an amount that is equal to the sum of:
(A)iithe amount determined by the board as reasonable and necessary to cover administrative costs; and
(B)iian amount determined annually by the board as reasonable and necessary for the administration of the examination fee scholarship program under Section 1051.653; and
(2)iinonresidents in an amount determined by the board.
4240 78th Legislature — Regular Session 82nd Day
(c)iiThe board may accept payment of a fee by electronic means. The board may charge a fee to process the payment made by electronic means. The board shall set the processing fee in an amount that is reasonably related to the expense incurred by the board in processing the payment made by electronic means, not to exceed five percent of the amount of the fee for which the payment is made.
(d)iiA fee set by the board under this section may not be used for the purpose of earning additional revenue for the board.
Sec.i1051.652.iiFEE INCREASE. (a)iiThe fee for the issuance of a certificate to an applicant possessing a license or certificate to practice architecture in another state and the fee for the renewal of a certificate under this chapter are increased by $200.
(b)iiOf each fee increase collected, $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund.
Sec.i1051.653.iiEXAMINATION FEE SCHOLARSHIPS. (a)iiThe board shall administer scholarships to applicants for examination under this part in a manner the board determines best serves the public purpose of:
(1)iipromoting the professional needs of the state;
(2)iiincreasing the number of highly trained and educated architects available to serve the residents of the state;
(3)iiimproving the state's business environment and encouraging economic development; and
(4)iiidentifying, recognizing, and supporting outstanding applicants who plan to pursue careers in architecture.
(b)iiIn determining what best serves the public purpose of the scholarships as described by Subsection (a), the board shall consider at least the financial need of each person who applies for a scholarship under this section.
(c)iiThe amount of the scholarship is the lesser of:
(1)ii$500; or
(2)iithe amount of the required examination fee.
(d)iiScholarships under this section are funded by the amount added to each renewal fee under Section 1051.651(b). The board may not use more than 15 percent of the amount appropriated to the board for scholarships under this section to pay the costs of administering the scholarships.
Sec.i1051.654.iiDESIGN AND APPROVAL OF ARCHITECT'S SEAL. (a)iiThe board shall prescribe and approve the seal to be used by an architect.
(b)iiThe design of the seal must be the same as the design used by the board, except that the words "Registered Architect, State of Texas" must be used instead of "Texas Board of Architectural Examiners."
SECTIONi3.14.iiThe heading to existing Subchapter G, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiNi[G].iiREGISTRATION OF ARCHITECTS [REQUIREMENTS]
SECTIONi3.15.iiExisting Section 1051.301, Occupations Code, is amended to read as follows:
Sec.i1051.701i[1051.301].iiREGISTRATION REQUIRED. (a)iiA person may
not engage in the practice of architecture or offer or attempt to engage in the practice
of architecture unless the person is registered as an architect under this chapter.
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(b)iiA firm, partnership, corporation, or association, including a firm, partnership, corporation, or joint stock association engaged in the practice of engineering under Section 1001.405, may engage in the practice of architecture, represent to the public that the entity is engaged in the practice of architecture or is offering architectural services, or use the word "architect" or "architecture" in any manner in its name only if any practice of architecture or architectural service performed on behalf of the entity is performed by or through a person registered as an architect under this chapter.
SECTIONi3.16.iiThe heading to existing Section 1051.302, Occupations Code, is amended to read as follows:
Sec.i1051.702i[1051.302].iiUSE OF ARCHITECT'S SEAL.
SECTIONi3.17.iiExisting Section 1051.302, Occupations Code, is amended by adding Subsection (d) to read as follows:
(d)iiA person may not present or attempt to use as the person's own the seal of another person.
SECTIONi3.18.iiThe heading to existing Section 1051.303, Occupations Code, is amended to read as follows:
Sec.i1051.703i[1051.303].iiCERTAIN PLANS OR SPECIFICATIONS TO BE
PREPARED ONLY BY ARCHITECT.
SECTIONi3.19.iiThe heading to existing Section 1051.304, Occupations Code, is amended to read as follows:
Sec.i1051.704i[1051.304].iiEXAMINATION; ISSUANCE OF CERTIFICATE.
SECTIONi3.20.iiThe heading to existing Section 1051.305, Occupations Code, is amended to read as follows:
Sec.i1051.705i[1051.305].iiELIGIBILITY AND APPLICATION FOR
EXAMINATION.
SECTIONi3.21.iiExisting Section 1051.305, Occupations Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:
(b)iiThe applicant must[:
[(1)]iipresent to the board:
(1)i[(A)]iia diploma showing that the applicant meets the education
requirement established by Subsection (a)(1); and
(2)i[(B)]iievidence acceptable to the board that the applicant meets the
experience requirement established by Subsection (a)(2).
(c)iiThe[; and
[(2)iipay to the] board shall set an examination [a] fee [not to exceed $300]
in an amount [set by the board as] reasonable and necessary to cover the cost of
[administering] the examination.
SECTIONi3.22.iiThe heading to existing Subchapter I, Chapter 1051, Occupations Code, is amended to read as follows:
SUBCHAPTERiOi[I].iiDISCIPLINARY PROCEDURES
FOR ARCHITECTS
SECTIONi3.23.iiExisting Sections 1051.401 and 1051.402, Occupations Code, are amended to read as follows:
4242 78th Legislature — Regular Session 82nd Day
Sec.i1051.751i[1051.401].iiDISCIPLINARY POWERS OF BOARD. (a)iiOn a
determination that a ground for discipline exists under Section 1051.752 [1051.402],
the board shall [may]:
(1)iirevoke, [or] suspend, or refuse to renew a certificate of registration;
(2)ii[place on probation a person whose certificate of registration is
suspended;
[(3)] reprimand a certificate [the] holder [of a certificate of registration]; or
(3)i[(4)]iiimpose an administrative penalty on a person under Subchapter I
[J].
(b)iiThe board may place on probation a person whose certificate of registration
is suspended. If the suspension [of a person's certificate of registration] is probated,
the board may require the person to:
(1)iireport regularly to the board on matters that are the basis of the probation;
(2)iilimit practice to the areas prescribed by the board; or
(3)iicontinue or review [renew] professional education until the person
attains a degree of skill satisfactory to the board in those areas that are the basis of the
probation.
Sec.i1051.752i[1051.402].iiGROUNDS FOR DISCIPLINARY ACTION. A
person is subject to disciplinary action under Section 1051.751 [1051.401] for:
(1)iia violation of this subtitle [chapter] or a board rule adopted under this
subtitle that applies to architects [chapter];
(2)iia failure to provide or to timely provide to the Texas Department of Licensing and Regulation any document designated by Article 9102, Revised Statutes, as a document the person is required to provide to the department;
(3)iia cause for which the board may refuse to issue a certificate of registration;
(4)iigross incompetency in the practice of architecture;
(5)iirecklessness in the practice of architecture, including recklessness in the
construction or alteration of a building by an architect designing, planning, or
observing the construction or alteration; [or]
(6)iidishonest practice in the practice of architecture by the holder of a certificate of registration;
(7)iigiving false or forged evidence to the board or a board member in obtaining or assisting another person to obtain a certificate of registration;
(8)iiaiding or abetting a person not registered under this subtitle in violating this subtitle; or
(9)iiusing or attempting to use as the person's own the certificate of registration of another person.
SECTIONi3.24.iiChapter 1051, Occupations Code, is amended by adding a new Subchapter P to the new Part 3 of that chapter to read as follows:
SUBCHAPTERiP.iiOTHER PENALTIES AND ENFORCEMENT
PROVISIONS: ARCHITECTS
Sec.i1051.801.iiCRIMINAL PENALTY. (a)iiA person, whether acting independently or on behalf of the person's firm, commits an offense if, in violation of this chapter, the person:
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(1)iiengages in the practice of architecture, or offers or attempts to engage in the practice of architecture;
(2)iiprepares architectural plans or specifications for and observes or supervises the construction, enlargement, or alteration of a building for another person; or
(3)iiadvertises or puts out a sign, card, or drawing designating the person as an architect or architectural designer or uses another business or professional title that uses a form of the word "architect."
(b)iiAn offense under this section is a misdemeanor punishable by a fine of not less than $250 and not more than $1,000. Each day of violation is a separate offense.
(c)iiIn an action brought under this section, the board may be represented by a district or county attorney or by other counsel as necessary.
ARTICLEi4.iiPROVISIONS AFFECTING ONLY LANDSCAPE ARCHITECTS
SECTIONi4.01.iiSubchapter A, Chapter 1052, Occupations Code, is amended by adding Sections 1052.004 and 1052.005 to read as follows:
Sec.i1052.004.iiACTIVITIES OF LANDSCAPE ARCHITECT EMPLOYEE. This chapter does not limit the ability of an employee of a landscape architect to act under the landscape architect's instructions, control, or supervision.
Sec.i1052.005.iiACTIVITIES OF CERTAIN PERSONS NOT REPRESENTED TO BE LANDSCAPE ARCHITECTS. (a)iiThis chapter does not apply to a person:
(1)iiwho does not represent that the person is a landscape architect or use a business or professional title that uses a form of the phrase "landscape architect"; and
(2)iiwho is a landscape architect licensed or registered in another state or country who:
(A)iidoes not open or maintain a business in this state; and
(B)iicomplies with the requirements of Subsection (b).
(b)iiA person described by Subsection (a) who agrees to perform or represents that the person is able to perform a professional service involved in the practice of landscape architecture may perform a landscape architectural service in this state only if, in performing the service, the person:
(1)iiemploys a landscape architect registered under this chapter as a consultant; or
(2)iiacts as a consultant of a landscape architect registered in this state.
SECTIONi4.02.iiSection 1052.054, Occupations Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:
(a)iiThe board may set a fee for a board action involving an administrative
expense in an amount that is reasonable and necessary to cover the cost of
administering this chapter, unless the amount of the fee is set [by this chapter or] by
the General Appropriations Act.
(d)iiA fee set by the board under this section may not be used for the purpose of earning additional revenue for the board.
SECTIONi4.03.iiThe heading to Section 1052.056, Occupations Code, is amended to read as follows:
Sec.i1052.056.ii[FORM AND] DESIGN AND APPROVAL OF LANDSCAPE
ARCHITECT'S SEAL.
4244 78th Legislature — Regular Session 82nd Day
SECTIONi4.04.iiSubsection (a), Section 1052.056, Occupations Code, is amended to read as follows:
(a)iiThe board shall prescribe and approve [the form of] the seal to be used by a
landscape architect.
SECTIONi4.05.iiSections 1052.251 and 1052.252, Occupations Code, are amended to read as follows:
Sec.i1052.251.iiDISCIPLINARY POWERS OF BOARD. (a)iiOn a
determination that a ground for discipline exists under Section 1052.252, the board
shall [may]:
(1)iirevoke, [or] suspend, or refuse to renew a certificate of registration;
(2)ii[place on probation a person whose certificate of registration is
suspended;
[(3)]iireprimand a certificate [the] holder [of a certificate of registration]; or
(3)i[(4)]iiimpose an administrative penalty on a person under Subchapter I,
Chapter 1051 [G].
(b)iiThe board may place on probation a person whose certificate of registration
is suspended. If the suspension [of a person's certificate of registration] is probated,
the board may require the person to:
(1)iireport regularly to the board on matters that are the basis of the probation;
(2)iilimit practice to the areas prescribed by the board; or
(3)iicontinue or review [renew] professional education until the person
attains a degree of skill satisfactory to the board in those areas that are the basis of the
probation.
Sec.i1052.252.iiGROUNDS FOR DISCIPLINARY ACTION. A person is subject to disciplinary action under Section 1052.251 for:
(1)iiviolating this subtitle [chapter] or a board rule adopted under this subtitle
that applies to landscape architects [chapter];
(2)iiusing fraud or deceit in obtaining a certificate of registration;
(3)iigiving false or forged evidence to the board or a member of the board in obtaining or assisting another person to obtain a certificate of registration;
(4)iiusing or attempting to use as the person's own the certificate of registration of another person;
(5)iiholding the person out to the public as an engineer or using the term "engineer," "engineered," "professional engineer," or "P.E." or any other term tending to create the impression that the person is authorized to practice engineering or another profession unless the person is licensed under Chapter 1001 or another licensing law of this state, as applicable;
(6)iiholding the person out to the public as a surveyor or using the term "surveyor," "surveyed," or "registered professional land surveyor" or any other term tending to create the impression that the person is authorized to practice surveying or another profession unless the person is licensed under Chapter 1071 or another licensing law of this state, as applicable;
(7)iicommitting an act of recklessness [gross negligence], gross
incompetency, or misconduct in the practice of landscape architecture; [or]
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(8)iifailing to provide or to timely provide to the Texas Department of Licensing and Regulation any document designated by Article 9102, Revised Statutes, as a document the person is required to provide to the department;
(9)iiacting dishonestly in the practice of landscape architecture; or
(10)iiaiding or abetting a person not registered under this subtitle in violating this subtitle.
ARTICLEi5.iiPROVISIONS AFFECTING ONLY INTERIOR DESIGNERS
SECTIONi5.01.iiSection 1053.002, Occupations Code, is amended to read as follows:
Sec.i1053.002.iiAPPLICATION. (a)iiThis chapter does not apply to:
(1)iia person who:
(A)i[(1)]iidoes not use the title "interior designer" and does not use the
term "interior design" to describe a service the person offers or performs; and
(B)iiis an interior designer licensed or registered in another state or country who:
(i)iidoes not open or maintain a business in this state; and
(ii)iicomplies with the requirements of Subsection (b); or
(2)iia person who is registered to practice architecture in this state.
(b)iiA person described by Subsection (a)(1) who agrees to perform or represents
that the person is able to perform [This chapter does not:
[(1)iiprohibit an employee of an interior designer or architect from
performing] an interior design service may perform an interior design service in this
state if, in performing the service, the person:
(1)iiemploys an [under the control, instruction, or supervision of the] interior
designer registered under this chapter as a consultant [or architect]; or
(2)iiacts as a consultant of an interior designer [restrict the practice or
activities of or the provision of a service by a person engaged in a profession or
occupation for which the person is licensed or] registered in this state [under any other
law].
SECTIONi5.02.iiSection 1053.052, Occupations Code, is amended by adding Subsection (d) to read as follows:
(d)iiA fee set by the board under this section may not be used for the purpose of earning additional revenue for the board.
SECTIONi5.03.iiSubchapter B, Chapter 1053, Occupations Code, is amended by adding Section 1053.058 to read as follows:
Sec.i1053.058.iiDESIGN AND APPROVAL OF INTERIOR DESIGNER'S SEAL. (a)iiThe board shall prescribe and approve the seal to be used by an interior designer.
(b)iiThe design of the seal must be the same as the design used by the board, except that the words "Registered Interior Designer, State of Texas" must be used instead of "Texas Board of Architectural Examiners."
SECTIONi5.04.iiSection 1053.160, Occupations Code, is amended to read as follows:
4246 78th Legislature — Regular Session 82nd Day
Sec.i1053.160.iiUSE OF INTERIOR DESIGNER'S SEAL. (a)iiAn interior
designer shall maintain a [is entitled to use any] seal described by Section 1053.058
and shall stamp or impress the seal on each drawing or specification issued from the
interior designer's office for use in this state [adopted by the board].
(b)iiA person may not use or attempt to use an interior designer's seal, a similar seal, or a replica of the seal unless the use is by or through an interior designer.
(c)iiAn interior designer may not permit a person who is not an interior designer to use the interior designer's seal without the interior designer's personal supervision.
(d)iiA person may not present or attempt to use as the person's own the seal of another person.
SECTIONi5.05.iiSubsections (a) and (b), Section 1053.251, Occupations Code, are amended to read as follows:
(a)iiOn a determination that a ground for disciplinary action exists under Section
1053.252, the board shall [may]:
(1)iirevoke, [or] suspend, or refuse to renew a certification of registration;
(2)ii[place on probation a person whose certificate of registration has been
suspended;
[(3)]iireprimand a certificate [the] holder [of a certificate of registration]; or
(3)i[(4)]iiimpose an administrative penalty on a person under Subchapter I,
Chapter 1051 [G].
(b)iiThe board may place on probation a person whose certificate of registration
is suspended. If the suspension [of a person's certificate of registration] is probated,
the board may require the person to:
(1)iireport regularly to the board on matters that are the basis of the probation;
(2)iilimit practice to the areas prescribed by the board; or
(3)iicontinue or review [renew] professional education until the person
attains a degree of skill satisfactory to the board in those areas that are the basis of the
probation.
SECTIONi5.06.iiSection 1053.252, Occupations Code, is amended to read as follows:
Sec.i1053.252.iiGROUNDS FOR DISCIPLINARY ACTION. A person is subject to disciplinary action under Section 1053.251 for:
(1)iiviolating this subtitle [chapter] or a board rule adopted under this subtitle
that applies to interior designers [chapter];
(2)iibeing convicted of a felony or of a misdemeanor involving moral turpitude;
(3)iiusing fraud or deceit in obtaining or attempting to obtain a certificate of registration;
(4)iicommitting an act of recklessness, gross incompetency, or misconduct in
the practice of interior design [performing professional duties in a grossly negligent
manner];
(5)iipracticing in a manner detrimental to the public health, safety, or welfare;
(6)iiadvertising in a manner that tends to deceive or defraud the public;
Friday, May 30, 2003 SENATE JOURNAL 4247
(7)iiaiding or abetting any person not registered under this subtitle [chapter]
in violating this subtitle [chapter]; [or]
(8)iifailing to provide or to timely provide to the Texas Department of Licensing and Regulation any document designated by Article 9102, Revised Statutes, as a document the person is required to provide to the department;
(9)iigiving false or forged evidence to the board or a member of the board in obtaining or assisting another person to obtain a certificate of registration;
(10)iiusing or attempting to use as the person's own the certificate of registration of another person; or
(11)iiacting dishonestly in the practice of interior design.
SECTIONi5.07.iiThe heading to Subchapter H, Chapter 1053, Occupations Code, is amended to read as follows:
SUBCHAPTERiH.ii[OTHER] PENALTIES
ARTICLE 6. REHABILITATION CODES
SECTIONi6.01.iiThe heading to Subchapter G, Chapter 214, Local Government Code, is amended to read as follows:
SUBCHAPTER G. BUILDING AND REHABILITATION CODES
SECTIONi6.02.iiSubchapter G, Chapter 214, Local Government Code, is amended by adding Section 214.215 to read as follows:
Sec.i214.215.iiADOPTION OF REHABILITATION CODES OR PROVISIONS. (a) In this section, "rehabilitation" means the alteration, remodeling, enlargement, or repair of an existing structure.
(b)iiA municipality that adopts a building code, other than the International Residential Code adopted under Section 214.212, shall adopt one of the following:
(1)iiprescriptive provisions for rehabilitation as part of the municipality's building code; or
(2)iithe rehabilitation code that accompanies the building code adopted by the municipality.
(c)iiThe rehabilitation code or prescriptive provisions do not apply to the rehabilitation of a structure to which the International Residential Code applies or to the construction of a new structure.
(d)iiA municipality may:
(1)iiadopt the rehabilitation code or prescriptive provisions for rehabilitation recommended by the Texas Board of Architectural Examiners; or
(2)iiamend its rehabilitation code or prescriptive provisions for rehabilitation.
(e)iiA municipality shall enforce the prescriptive provisions for rehabilitation or the rehabilitation code in a manner consistent with the enforcement of the municipality's building code.
ARTICLEi7.iiREPEALER; TRANSITION PROVISIONS;
EFFECTIVE DATE
SECTIONi7.01.ii(a)iiSubchapters C, E, and G, Chapter 1052, and Subchapters C, E, and G, Chapter 1053, Occupations Code, are repealed.
4248 78th Legislature — Regular Session 82nd Day
(b)iiExisting Sections 1051.003, 1051.204, 1051.205, 1051.206, 1051.210, 1051.306, 1051.307, 1051.403, 1051.503, 1052.001, 1052.051, 1052.052, 1052.053, 1052.055, 1052.057, 1052.058, 1052.155, 1052.156, 1052.253, 1053.001, 1053.051, 1053.054, 1053.055, 1053.056, 1053.057, 1053.156, 1053.157, 1053.161, 1053.253, and 1053.254, Occupations Code, are repealed.
SECTIONi7.02.iiNot later than March 1, 2004, the Texas Board of Architectural Examiners shall:
(1)iiadopt rules as required by this Act; and
(2)iiset the fees required by this Act.
SECTIONi7.03.ii(a)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 Subsection (b), Section 1051.355, Occupations Code, as set out in this Act, gives effect to changes made by Section 3, Chapter 861, Acts of the 77th Legislature, Regular Session, 2001.
(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 1051.402, Occupations Code, set out in this Act as new Section 1051.752, Occupations Code, gives effect to changes made by Section 2, Chapter 861, Acts of the 77th Legislature, Regular Session, 2001.
(c)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 1052.252, Occupations Code, as set out in this Act, gives effect to changes made by Section 6, Chapter 861, Acts of the 77th Legislature, Regular Session, 2001.
(d)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 1053.252, Occupations Code, as set out in this Act, gives effect to changes made by Section 9, Chapter 861, Acts of the 77th Legislature, Regular Session, 2001.
(e)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.
SECTIONi7.04.ii(a)iiThe changes in law made by this Act by the amendment of Section 1051.103, Occupations Code, and the addition of Section 1051.112, Occupations Code, in the prohibitions on or qualifications of members of the Texas Board of Architectural Examiners do not affect the entitlement of a member serving on the Texas Board of Architectural Examiners immediately before September 1, 2003, to continue to serve and function as a member of the Texas Board of Architectural 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.
(b)iiBefore adopting an administrative penalty schedule under Subsection (c), Section 1051.452, Occupations Code, as added by this Act, the Texas Board of Architectural Examiners shall hold a public hearing that addresses the proposed administrative penalty schedule. The board must allow members of the public to present oral testimony or written documentation at the hearing.
Friday, May 30, 2003 SENATE JOURNAL 4249
SECTIONi7.05.iiA municipality shall adopt prescriptive provisions for rehabilitation or a rehabilitation code, as required by Section 214.215, Local Government Code, as added by this Act, on or before January 1, 2004.
SECTIONi7.06.iiThis Act does not affect the application of the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.).
SECTIONi7.07.iiThis Act takes effect September 1, 2003.
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 9
Senator Shapiro submitted the following Conference Committee Report:
Austin, Texas
May 29, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi9 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
| SHAPIRO | FLORES | |
| HINOJOSA | ALLEN | |
| LINDSAY | MARCHANT | |
| GALLEGOS | CORTE | |
| WENTWORTH | BERMAN | |
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
SENATE BILL 277
Senator Ellis submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on SBi277 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.
4250 78th Legislature — Regular Session 82nd Day
| ELLIS | CHISUM | |
| WENTWORTH | W. SMITH | |
| SHAPLEIGH | DRIVER | |
| NELSON | HAMILTON | |
| EDWARDS | ||
| On the part of the Senate | On the part of the House |
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas Board of Professional Engineers and to the regulation of the practice of engineering.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubsection (e), Section 1001.004, Occupations Code, is amended to read as follows:
(e)iiThis chapter does not:
(1)iiprevent a person from identifying the person in the name and trade of any engineers' labor organization with which the person is affiliated;
(2)iiprohibit or otherwise restrict a person from giving testimony or preparing an exhibit or document for the sole purpose of being placed in evidence before an administrative or judicial tribunal, subject to the board's disciplinary powers under Subchapter J regarding negligence, incompetency, or misconduct in the practice of engineering;
(3)iirepeal or amend a law affecting or regulating a licensed state land surveyor; or
(4)iiaffect or prevent the practice of any other legally recognized profession by a member of the profession who is licensed by the state or under the state's authority.
SECTIONi2.iiSections 1001.005 and 1001.051, Occupations Code, are amended to read as follows:
Sec.i1001.005.iiAPPLICATION OF SUNSET ACT. The Texas Board of
Professional Engineers 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].
Sec.i1001.051.iiLIMITATION ON EXEMPTION. An exemption under this
subchapter applies only to a person who does not offer [is not directly or indirectly
represented] to the public to perform [be legally qualified to engage in the practice of]
engineering services.
SECTIONi3.iiSection 1001.057, Occupations Code, is amended to read as follows:
Sec.i1001.057.iiEMPLOYEE OF PRIVATE CORPORATION OR BUSINESS
ENTITY [OR AFFILIATE]. (a)iiThis chapter shall not be construed to apply to the
activities of a private corporation or other business entity, or the activities of the
full-time employees or other personnel under the direct supervision and control of the
business entity, on or in connection with [A regular full-time employee of a private
business entity is exempt from the licensing requirements of this chapter if]:
Friday, May 30, 2003 SENATE JOURNAL 4251
(1)iireasonable modifications to existing buildings, facilities, or other
fixtures to real property not accessible to the general public and which are owned,
leased, or otherwise occupied by the entity [the employee performs services
exclusively for the business entity or an affiliate of that entity]; or
(2)iiactivities related only to the research, development, design, fabrication,
production, assembly, integration, or service of products manufactured by the entity
[the employee's services:
[(A)iiare on or in connection with property:
[(i)iiowned or leased by the business entity or affiliate; or
[(ii)iiin which the business entity or affiliate has an interest, estate,
or possessory right; or
[(B)iiaffect exclusively the property, products, or interests of the
business entity or affiliate; and
[(3)iithe employee does not have the final authority to approve, or the
ultimate responsibility for, engineering designs, plans, or specifications relating to the
property or products that are to be:
[(A)iiincorporated into a fixed work, system, or facility on the property
of another; or
[(B)iimade available to the public].
(b)ii[This exemption includes the use of a job title or personnel classification by
the employee if the employee does not use:
[(1)iithe title or classification in connection with an offer to the public to
perform engineering services; and
[(2)iia name, title, or word that tends to convey the impression that a person
not licensed under this chapter is offering to the public to perform engineering
services.
[(c)]iiA person who claims an exemption under this section and who is
determined to have directly or indirectly represented the person as legally qualified to
engage in the practice of engineering or who is determined to have violated Section
1001.301 may not claim an exemption until the 10th anniversary of the date the
person made that representation.
(c)iiThis exemption does not prohibit:
(1)iia licensed professional engineer who intends to incorporate manufactured products into a fixed work, system, or facility that is being designed by the licensee on public property or the property of others from requiring the manufacturer to have plans or specifications signed and sealed by a licensed professional engineer; or
(2)iithe board from requiring, by rule, that certain manufactured products delivered to or used by the public must be designed and sealed by a licensed professional engineer, if necessary to protect the public health, safety, and welfare.
4252 78th Legislature — Regular Session 82nd Day
(d)iiFor purposes of this section, "products manufactured by the entity" also includes computer software, firmware, hardware, semiconductor devices, and the production, exploration, and transportation of oil and gas and related products.
SECTIONi4.iiSubsections (b) and (c), Section 1001.058, Occupations Code, are amended to read as follows:
(b)ii[This exemption includes the use of a job title or personnel classification by
the employee if the employee does not use:
[(1)iithe title or classification in connection with an offer to the public to
perform engineering services; and
[(2)iia name, title, or word that tends to convey the impression that a person
not licensed under this chapter is offering to the public to perform engineering
services.
[(c)]iiA person who claims an exemption under this section and who is
determined to have directly or indirectly represented the person as legally qualified to
engage in the practice of engineering or who is determined to have violated Section
1001.301 may not claim an exemption until the 10th anniversary of the date the
person made that representation.
SECTIONi5.iiSubchapter B, Chapter 1001, Occupations Code, is amended by adding Section 1001.066 to read as follows:
Sec.i1001.066.iiCERTAIN NASA-RELATED ACTIVITIES. This chapter does not:
(1)iiapply to a business entity or the business entity's employees to the extent that the entity's products or services consist of space vehicles or space services provided to, or space technology transfer programs required by, the National Aeronautics and Space Administration; or
(2)iiprohibit the use of the term "engineer" or "engineering" in a job title or personnel classification by an employee described by Subdivision (1) to the extent that the use of the title or classification is related to activities described by that subdivision.
SECTIONi6.iiSubsection (b), Section 1001.101, Occupations Code, is amended to read as follows:
(b)iiAppointments to the board shall be made without regard to the race, color,
disability [creed], sex, religion, age, or national origin of the appointee.
SECTIONi7.iiSubsection (a), Section 1001.102, Occupations Code, is amended to read as follows:
(a)iiA person may not be [is not eligible for appointment as] a public member of
the board if the person or the person's spouse:
(1)iiis registered, certified, or licensed by a [an occupational] regulatory
agency in the field of engineering;
(2)iiis employed by or participates in the management of a [an agency or]
business entity or other organization regulated by or receiving money from the board
[related to the field of engineering]; [or]
(3)iiowns or controls, directly or indirectly, more than a 10 percent [has a
financial] interest [other than as a consumer] in a business entity or other organization
regulated by or receiving money from the board; or
Friday, May 30, 2003 SENATE JOURNAL 4253
(4)iiuses or receives a substantial amount of tangible goods, services, or
money from the board other than compensation or reimbursement authorized by law
for board membership, attendance, or expenses [related to the field of engineering].
SECTIONi8.iiSection 1001.103, Occupations Code, is amended to read as follows:
Sec.i1001.103.iiMEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a)iiIn 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.
(a-1)iiA person may not be a [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 engineering [industry]; or
(2)iithe person's spouse [related within the second degree by affinity or
consanguinity, 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 engineering [industry].
(b)iiA person may not be [serve as] a member of the board or act as the general
counsel to the board 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 board.
SECTIONi9.iiSection 1001.106, Occupations Code, is amended by amending Subsection (a) and adding Subsection (c) to read as follows:
(a)iiIt 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 Sections 1001.101 and [Section] 1001.102;
(2)iidoes not maintain during service on the board the qualifications required
by Sections 1001.101 and [Section] 1001.102;
(3)iiis ineligible for membership under Section 1001.102 or [violates a
prohibition established by Section] 1001.103; [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 half of the regularly scheduled board meetings
that the member is eligible to attend during [held in] a calendar year without an excuse
approved by a majority vote of the board[, excluding meetings held while the person
was not a member].
(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
4254 78th Legislature — Regular Session 82nd Day
SECTIONi10.iiSection 1001.108, Occupations Code, is amended to read as follows:
Sec.i1001.108.iiOFFICERS. The governor shall designate a member of the board
as the presiding officer of the board to serve in that capacity at the will of the
governor. The board shall elect annually from its members [a presiding officer,] an
assistant presiding officer[,] and a secretary.
SECTIONi11.iiSubchapter C, Chapter 1001, Occupations Code, is amended by adding Section 1001.112 to read as follows:
Sec.i1001.112.iiTRAINING. (a)iiA 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 board;
(3)iithe role and functions of the board;
(4)iithe rules of the board, with an emphasis on the rules that relate to disciplinary and investigatory authority;
(5)iithe current budget for the board;
(6)iithe results of the most recent formal audit of the board;
(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 board 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.
SECTIONi12.iiSubchapter D, Chapter 1001, Occupations Code, is amended by adding Sections 1001.153 through 1001.156 to read as follows:
Sec.i1001.153.iiDIVISION 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 board.
Sec.i1001.154.iiQUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The executive director or the executive director's designee shall provide to members of the board and to board employees, as often as necessary,
Friday, May 30, 2003 SENATE JOURNAL 4255
Sec.i1001.155.iiEQUAL EMPLOYMENT OPPORTUNITY POLICY; REPORT. (a)iiThe 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 board 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 board'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 Commission on Human Rights for compliance with Subsection (b)(1); and
(3)iibe filed with the governor's office.
Sec.i1001.156.iiINFORMATION ON STATE EMPLOYEE INCENTIVE PROGRAM. The executive director or the executive director's designee shall provide to board employees information and training on the benefits and methods of participation in the state employee incentive program under Subchapter B, Chapter 2108, Government Code.
SECTIONi13.iiSection 1001.203, Occupations Code, is amended to read as follows:
Sec.i1001.203.iiRULES RESTRICTING ADVERTISING OR COMPETITIVE
BIDDING. (a)iiThe board by rule shall prescribe standards for compliance with
Subchapter A, Chapter 2254, Government Code [may restrict competitive bidding].
(b)iiExcept as provided by Subsection (a), the [The] board may not adopt rules [a
rule] restricting advertising or competitive bidding by a license holder [person
licensed under this chapter] except to prohibit false, misleading, or deceptive practices
[by the person].
(c)iiIn its rules to prohibit false, misleading, or deceptive practices, the [The]
board may not include [in its rules to prohibit false, misleading, or deceptive
practices] a rule that:
(1)iirestricts the [person's] use of any medium for advertising;
(2)iirestricts the use of a license holder's [person's] personal appearance or
[use of the person's] voice in an advertisement;
(3)iirelates to the size or duration of an advertisement by the license holder
[person]; or
(4)iirestricts the license holder's [person's] advertisement under a trade
name.
SECTIONi14.iiSubchapter E, Chapter 1001, Occupations Code, is amended by adding Section 1001.2035 to read as follows:
4256 78th Legislature — Regular Session 82nd Day
Sec.i1001.2035.iiRULES ON CONSEQUENCES OF CRIMINAL CONVICTION. The board shall adopt rules and guidelines as necessary to comply with Chapter 53.
SECTIONi15.iiSubsection (a), Section 1001.204, Occupations Code, is amended to read as follows:
(a)iiThe board shall establish the following [reasonable and necessary] fees in
amounts reasonable and necessary to cover the costs of administering [for the
administration of] this chapter [in amounts not to exceed]:
(1)iilicense fee; [. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $50]
(2)iiannual renewal fee; [. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $75]
(3)iireciprocal license fee; [. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $50]
(4)iiduplicate license fee; [. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $5]
(5)iiengineer-in-training certificate fee; [. . . . . . . . . . . . . . . . . . . . . . . . . $15]
(6)iiroster of engineers fee; [. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $10]
(7)iiexamination fee; [. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $200]
(8)iiregistration fee for engineering firm; and
(9)iiinactive status fee. [. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100]
SECTIONi16.iiSubsection (c), Section 1001.206, Occupations Code, is amended to read as follows:
(c)iiThe fee increase imposed by Subsection (a) does not apply to an engineer who:
(1)iimeets the qualifications for an exemption under Section 1001.057 or
1001.058 but does not claim that exemption; [or]
(2)iiis disabled as described by Section 1001.205; or
(3)iiis on inactive status as provided by Section 1001.355.
SECTIONi17.iiSection 1001.210, Occupations Code, is amended to read as follows:
Sec.i1001.210.iiCONTINUING EDUCATION PROGRAMS. (a)iiThe board
shall [may] recognize, prepare, or administer continuing education programs for its
license holders. A license holder must participate in the programs to the extent
required by the board to keep the person's license.
(b)iiThe board may not require a license holder to obtain more than 15 hours of continuing education annually. The board shall permit a license holder to certify at the time the license is renewed that the license holder has complied with the board's continuing education requirements.
(c)iiThe board shall permit a license holder to receive continuing education credit for educational, technical, ethical, or professional management activities related to the practice of engineering, including:
(1)iisuccessfully completing or auditing a course sponsored by an institution of higher education;
(2)iisuccessfully completing a course certified by a professional or trade organization;
(3)iiattending a seminar, tutorial, short course, correspondence course, videotaped course, or televised course;
(4)iiparticipating in an in-house course sponsored by a corporation or other business entity;
Friday, May 30, 2003 SENATE JOURNAL 4257
(5)iiteaching a course described by Subdivisions (1)-(4);
(6)iipublishing an article, paper, or book on the practice of engineering;
(7)iimaking or attending a presentation at a meeting of a technical or engineering management society or organization or writing a paper presented at such a meeting;
(8)iiparticipating in the activities of a professional society or association, including serving on a committee of the organization; and
(9)iiengaging in self-directed study.
(d)iiA license holder may not receive more than five continuing education credit
hours annually for engaging in self-directed study [persons regulated by the board
under this chapter. Participation in the programs is voluntary].
SECTIONi18.iiSubchapter E, Chapter 1001, Occupations Code, is amended by adding Sections 1001.214, 1001.215, and 1001.216 to read as follows:
Sec.i1001.214.iiTECHNOLOGY POLICY. The board shall develop and implement a policy requiring the executive director and board employees to research and propose appropriate technological solutions to improve the board's ability to perform its functions. The technological solutions must:
(1)iiensure that the public is able to find information about the board on the Internet;
(2)iiensure that persons who want to use the board's services are able to:
(A)iiinteract with the board 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 board's planning processes.
Sec.i1001.215.iiNEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a)iiThe 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 board rules; and
(2)iiappropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the board's jurisdiction.
(b)iiThe board'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 board.
Sec.i1001.216.iiJOINT ADVISORY COMMITTEE ON THE PRACTICE OF ENGINEERING AND ARCHITECTURE. (a)iiThe Joint Advisory Committee on the Practice of Engineering and Architecture is an advisory committee to the board and to the Texas Board of Architectural Examiners. The advisory committee consists of:
4258 78th Legislature — Regular Session 82nd Day
(1)iithree members of the board and one practicing architectural engineer appointed by the board; and
(2)iithree members of the Texas Board of Architectural Examiners and one practicing architect appointed by that board.
(b)iiMembers of the advisory committee serve staggered six-year terms with the terms of one or two members appointed by the board and one or two members appointed by the Texas Board of Architectural Examiners expiring each odd-numbered year.
(c)iiThe advisory committee shall meet at least twice a year.
(d)iiThe advisory committee shall work to resolve issues that result from the overlap between activities that constitute the practice of engineering and those that constitute the practice of architecture. The advisory committee shall assist each agency in protecting the public rather than advancing the interests of either agency or the profession it regulates.
(e)iiThe advisory committee shall issue advisory opinions to the board and to the Texas Board of Architectural Examiners on matters relating to the practice of engineering and the practice of architecture, including:
(1)iiopinions on whether certain activities constitute the practice of engineering or the practice of architecture;
(2)iispecific disciplinary proceedings initiated by either agency; and
(3)iithe need for persons working on particular projects to be licensed by the board or registered by the Texas Board of Architectural Examiners.
(f)iiIf the advisory committee issues an advisory opinion to the board or the Texas Board of Architectural Examiners on a matter, that agency shall notify the committee of the final action taken with regard to the matter. The advisory committee shall consider the action taken by the agency on the matter in any advisory opinion subsequently issued by the committee on a related matter.
(g)iiThe board and the Texas Board of Architectural Examiners shall enter into a memorandum of understanding regarding the advisory committee that includes the composition and purpose of the committee.
SECTIONi19.iiSection 1001.251, Occupations Code, is amended by adding Subsection (c) to read as follows:
(c)iiThe board shall maintain on the board's Internet website:
(1)iiinformation regarding the procedure for filing a complaint with the board; and
(2)iia form that a person may use to file a complaint with the board.
SECTIONi20.iiSections 1001.252 and 1001.253, Occupations Code, are amended to read as follows:
Sec.i1001.252.iiGENERAL RULES REGARDING COMPLAINT
INVESTIGATION AND DISPOSITION [COMPLAINTS]. (a)iiThe board shall
adopt rules that permit the board to receive and investigate a confidential complaint
against a license holder or other person who may have violated this chapter. The board
shall maintain the confidentiality of the complaint during the investigation.
(b)iiThe board by rule shall specify:
(1)iithe manner by which a person may contact the board for assistance in filing a complaint;
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(2)iithe place at which a complaint must be filed;
(3)iithe proper form of a complaint; and
(4)iithe information that must be included in a complaint.
(c)iiThe board's procedures must permit a member of the public who desires to file a complaint to:
(1)iispeak to an investigator on the staff of the board if the person desires to do so; or
(2)iieasily and conveniently access the board's complaint process without being required to speak to an investigator on the staff of the board if the person does not desire to speak to an investigator.
(d)iiThe board shall consider any written grievance against a license holder or other person filed with the board as a complaint.
(e)iiA complaint must include information sufficient for the board to determine whether it has the authority to resolve the complaint. A complaint that contains sufficient information for the board to commence an investigation is not required to include all of the information necessary for the board to determine the validity of the complaint.
(f)iiOn receipt of a complaint, the board shall determine whether the board has the authority to resolve the complaint. If the board does not have the authority to resolve the complaint, the board shall dismiss the complaint. If the board has the authority to resolve the complaint, the board shall initiate a disciplinary proceeding against the person who is the subject of the complaint.
(g)iiThe board by rule shall prescribe a method for prioritizing complaints for purposes of complaint investigation. In establishing priorities:
(1)iia complaint that alleges an action that could potentially harm the public takes precedence over a complaint that does not allege an action that could potentially harm the public; and
(2)iiwith regard to complaints that do not allege an action that could potentially harm the public, a complaint filed by a member of the public takes precedence over a complaint filed by the staff of the board.
(h)iiThe board's staff is responsible for conducting all phases of complaint investigation, including gathering evidence necessary to determine the validity of the complaint.
(i)iiThe board may employ or contract with advisors, consultants, engineers, or other persons to provide technical assistance in investigations and disciplinary proceedings. Except for an action involving fraud, conspiracy, or malice, a person whose services are obtained by the board under this subsection is immune from civil liability and may not be subjected to a suit for damages for any investigation, report, recommendation, statement, evaluation, finding made, or other action taken in the course of performing the person's official duties.
(j)iiThe board's staff shall regularly report to the board on each complaint dismissed by board staff, including:
(1)iithe name of the complainant;
(2)iithe name of the person who is the subject of the complaint;
(3)iithe basis of the complaint; and
(4)iithe reason for the dismissal of the complaint.
4260 78th Legislature — Regular Session 82nd Day
(k)iiExcept as provided by Subsection (l), a complaint filed with the board is public information.
(l)iiFor any frivolous complaint, the license holder's name and other personal information on the complaint is not public information and must be redacted.
(m)iiIn this section, "frivolous complaint" means a complaint that the executive director and investigator, with board approval, determined:
(1)iiwas made for the purpose of harassment; and
(2)iidoes not demonstrate harm to any person.
Sec.i1001.253.iiCOMPLAINT INFORMATION. (a)iiThe board shall:
(1)iiassign a number to each complaint filed with the board; and
(2)iiensure that each phase of the processing of a complaint is appropriately documented.
(b)iiThe board shall maintain a [keep an information] file on [about] each written
complaint [relating to a license holder] 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 board;
(3)iithe subject matter of the complaint;
(4)iithe name of each person contacted in relation to the complaint;
(5)iia summary of the results of the review or investigation of the complaint; and
(6)iian explanation of the reason the file was closed, if the board closed the file without taking action other than to investigate the complaint.
(c)iiThe board shall provide to the person filing the complaint and to each person who is a subject of the complaint a copy of the board's policies and procedures relating to complaint investigation and resolution.
(d)iiThe [(b)iiIf a written complaint relating to a license holder is filed with the
board, the] board, at least quarterly and until final disposition of the complaint, shall
notify the parties to the complaint of the status of the complaint unless the notice
would jeopardize an undercover investigation.
SECTIONi21.iiSubchapter F, Chapter 1001, Occupations Code, is amended by adding Sections 1001.254 and 1001.255 to read as follows:
Sec.i1001.254.iiSTATISTICAL ANALYSIS OF COMPLAINTS. (a)iiThe board shall develop and maintain a complaint tracking system to monitor the processing of complaints filed with the board.
(b)iiThe board shall include with the board's annual financial report under Section 2101.011, Government Code, a statistical analysis of the complaints filed with the board during the preceding year, including:
(1)iithe number of complaints filed;
(2)iia categorization of complaints filed according to the basis of the complaint and the number of complaints in each category;
(3)iithe number of complaints filed by board staff;
(4)iithe number of complaints filed by persons other than board staff;
(5)iithe average length of time required to resolve a complaint;
(6)iithe number of complaints resolved and the manner in which they were resolved, including:
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(A)iithe number of complaints dismissed and the reasons for dismissal; and
(B)iithe number of complaints resulting in disciplinary action, the disciplinary action taken, and whether the disciplinary action taken was imposed by stipulation, agreed settlement, consent order, default, or order following a contested case hearing; and
(7)iithe number of complaints filed that are unresolved, the number of those complaints filed by board staff, the number of those complaints filed by persons other than board staff, and the average length of time that the unresolved complaints have been on file.
Sec.i1001.255.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 board.
SECTIONi22.iiSection 1001.301, Occupations Code, is amended by amending Subsections (b) and (c) and adding Subsections (f) and (g) to read as follows:
(b)iiExcept as provided by Subsection (f), a [A] person may not, unless the
person holds a license issued under this chapter, directly or indirectly use or cause to
be used as a professional, business, or commercial identification, title, name,
representation, claim, asset, or means of advantage or benefit any of, or a variation or
abbreviation of, the following terms:
(1)ii"engineer";
(2)ii"professional engineer";
(3)ii"licensed engineer";
(4)ii"registered engineer";
(5)ii"registered professional engineer";
(6)ii"licensed professional engineer"; or
(7)ii"engineered."
(c)iiExcept as provided by Subsection (f), a [A] person may not directly or
indirectly use or cause to be used an abbreviation, word, symbol, slogan, or sign that
tends or is likely to create an impression with the public that the person is qualified or
authorized to engage in the practice of engineering unless the person holds a license
and is practicing under this chapter.
(f)iiNotwithstanding the other provisions of this chapter, a regular employee of a business entity who is engaged in engineering activities but is exempt from the licensing requirements of this chapter under Sections 1001.057 or 1001.058 is not prohibited from using the term "engineer" on a business card, cover letter, or other form of correspondence that is made available to the public if the person does not:
(1)iioffer to the public to perform engineering services; or
(2)iiuse the title in any context outside the scope of the exemption in a manner that represents an ability or willingness to perform engineering services or make an engineering judgment requiring a licensed professional engineer.
(g)iiSubsection (f) does not authorize a person to use a term listed in Subsections (b)(2)-(6) or a variation or abbreviation of one of those terms.
SECTIONi23.iiSection 1001.303, Occupations Code, is amended to read as follows:
4262 78th Legislature — Regular Session 82nd Day
Sec.i1001.303.iiAPPLICATION FOR LICENSE. (a)iiAn applicant for a license
under this chapter must submit an [a sworn] application on a form prescribed and
provided by the board.
(b)iiThe application must contain:
(1)iipersonal information about the applicant, as required by board rule;
(2)iia description of the applicant's education;
(3)iia detailed summary of the applicant's actual engineering work;
(4)iia description of any engineering license or registration previously issued to the applicant and any denial, revocation, or suspension of an engineering license or registration held by the applicant;
(5)iia description of any criminal offense of which the applicant has been convicted; and
(6)iiat least three [five] references from engineers [individuals] having
personal knowledge of the applicant's character, reputation, [and] general suitability
for a license, and [of whom at least three must be engineers having personal
knowledge of the applicant's] engineering experience.
SECTIONi24.iiSection 1001.304, Occupations Code, is amended by adding Subsection (d) to read as follows:
(d)iiThe board by rule shall ensure that the examination is administered to applicants with disabilities in compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.), and its subsequent amendments.
SECTIONi25.iiSections 1001.306, 1001.310, and 1001.311, Occupations Code, are amended to read as follows:
Sec.i1001.306.iiEXAMINATION RESULTS. (a)iiNot later than the 30th day
after the date a person takes a licensing examination under this chapter, the [The]
board shall notify the person [each examinee] of the results of the [an] examination
[not later than the 30th day after the date the examination is administered].
(a-1)iiIf the [an] examination is graded or reviewed by a [national] testing
service:
(1)[,]iithe board shall notify the person [each examinee] of the results of the
examination not later than the 14th day after the date the board receives the results
from the testing service; and
(2)iiif[.
[(b)iiIf the] notice of the examination results [of an examination] will be delayed
for longer than 90 days after the examination date, the board shall notify the person
[each examinee] of the reason for the delay before the 90th day.
(b)iiThe board may require a testing service to notify a person of the results of the person's examination.
(c)iiIf requested in writing by a person who fails a licensing [the] examination
administered under this chapter, the board shall furnish [provide to] the person with an
analysis of the person's performance on the examination.
Sec.i1001.310.iiTEMPORARY OR PROVISIONAL LICENSE. (a)iiThe board by rule may adopt standards and procedures for issuing a temporary or provisional license under this chapter.
(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:
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(1)iihas been licensed in good standing as an engineer 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 engineering; 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 subsection 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 Section 1001.311(b); or
(2)iithe provisional license holder meets the following requirements:
(A)iithe provisional license holder passes an examination that tests the provisional license holder's knowledge and understanding of the laws and rules relating to the practice of engineering in this state;
(B)iithe board verifies that the provisional license holder meets the academic and experience requirements for a license under this chapter; and
(C)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.
Sec.i1001.311.iiAPPLICATION BY NONRESIDENT. (a)iiA person who holds a license or certificate of registration issued by another state or a foreign country may apply for a license in this state.
(b)iiThe board may waive any prerequisite to obtaining a license for an applicant after reviewing the applicant's credentials and determining that the applicant holds a license issued by another jurisdiction that has licensing requirements substantially equivalent to those of this state.
SECTIONi26.iiSubsection (b), Section 1001.351, Occupations Code, is amended to read as follows:
(b)iiThe board by rule may adopt a system under which licenses and registrations expire on various dates during the year. For the year in which the license or registration expiration date is changed, the board shall prorate license or registration fees on a monthly basis so that each license or registration holder pays only that portion of the license or registration fee that is allocable to the number of months
4264 78th Legislature — Regular Session 82nd Day
SECTIONi27.iiSections 1001.352 and 1001.353, Occupations Code, are amended to read as follows:
Sec.i1001.352.iiNOTICE OF LICENSE EXPIRATION. Not later than the 30th
day [one month] before the [expiration] date [of] a person's license is scheduled to
expire, the board shall send [mail to the person at the last address the person provided
to the board] written notice of the impending [license] expiration to the person at the
person's last known address according to the records of the board [date and the
amount of the annual renewal fee for the license].
Sec.i1001.353.iiPROCEDURE FOR RENEWAL. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed.
(b)iiA person whose license has been expired for 90 days or less may renew the
license by paying to the board a renewal fee that is equal to 1-1/2 times the normally
[the] required renewal fee and any applicable increase in fees as required by Section
1001.206 [a penalty fee set by the board].
(c)iiA person whose license has been expired for more than 90 days but less than
two years may renew the license by paying to the board a renewal fee that is equal to
two times the normally required renewal fee and any applicable increase in fees as
required by Section 1001.206 for each delinquent year or part of a year [all unpaid
renewal fees and a penalty fee set by the board].
(d)iiA person whose license has been expired for two years or more may not
renew the license. The person may obtain a new license by complying with the
requirements and procedures, including the examination requirements, for obtaining
an original license [that are in effect at the time the person applies].
SECTIONi28.iiSubchapter H, Chapter 1001, Occupations Code, is amended by adding Sections 1001.354 and 1001.355 to read as follows:
Sec.i1001.354.iiRENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a)iiA person who was licensed in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding the date of application may obtain a new license without reexamination.
(b)iiThe person must pay to the board a fee that is equal to two times the normally required renewal fee for the license.
Sec. 1001.355.iiINACTIVE STATUS. (a) An engineer may request inactive status at any time before the expiration date of the person's license. A license holder on inactive status may not practice engineering.
(b)iiA license holder on inactive status must pay an annual fee set by the board.
(c)iiA license holder on inactive status is not required to:
(1)iicomply with the continuing education requirements adopted by the board; or
(2)iitake an examination for reinstatement to active status.
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(d)iiTo return to active status, a license holder on inactive status must:
(1)iifile with the board a written notice requesting reinstatement to active status;
(2)iipay the fee for the annual renewal of the license and the fee increase required by Section 1001.206; and
(3)iiprovide evidence satisfactory to the board that the person has complied with the continuing education requirements adopted by the board.
SECTIONi29.iiSection 1001.405, Occupations Code, is amended by adding Subsection (g) to read as follows:
(g)iiNotwithstanding the other provisions of this section, the board by rule may provide that a business entity that has not previously registered with the board and that is engaged in the practice of engineering in violation of Subsection (b) is not subject to disciplinary action for the violation if the business entity registers with the board not later than the 30th day after the date the board gives written notice to the business entity of the registration requirement. This subsection does not apply to a business entity whose registration has expired.
SECTIONi30.iiSection 1001.406, Occupations Code, is amended to read as follows:
Sec.i1001.406.iiGRADUATE ENGINEERS. (a)iiA graduate of a [public]
university recognized by the American Association of Colleges and Universities who
has a degree from an engineering program accredited by the Accreditation Board for
Engineering and Technology (ABET) has the right to:
(1)iidisclose any college degree received by the person; and
(2)iiuse the term "graduate engineer" on the person's stationery or business cards or in personal communications of any character.
(b)iiA graduate engineer who is employed in a firm registered under this chapter and who is working under the direct supervision of a licensed professional engineer may use the term "engineer" on the person's stationery or business cards or in personal communications of any character.
SECTIONi31.iiSubchapter J, Chapter 1001, Occupations Code, is amended by adding Sections 1001.4525, 1001.4526, and 1001.4527 to read as follows:
Sec.i1001.4525.iiPROBATION. (a) If a person's license suspension is probated, the board may require the person to:
(1)iireport regularly to the board on matters that are the basis of the probation;
(2)iilimit practice to the areas prescribed by the board; or
(3)iicontinue 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.
(b)iiThe board by rule shall adopt written guidelines to ensure that probation is administered consistently.
Sec.i1001.4526.iiRESTITUTION. (a) Subject to Subsection (b), the board may order a person licensed or registered under this chapter to pay restitution to a consumer as provided in an agreement resulting from an informal settlement conference instead of or in addition to imposing an administrative penalty under this chapter.
4266 78th Legislature — Regular Session 82nd Day
(b)iiThe amount of restitution ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to the person for a service regulated by this chapter. The board may not require payment of other damages or estimate harm in a restitution order.
Sec.i1001.4527.iiRECUSAL OF BOARD MEMBER. (a) A board member who participated in the investigation of a complaint or in informal settlement negotiations regarding the complaint:
(1)iimay not participate in the discussion of or vote on the matter at a board meeting related to the complaint; and
(2)iishall state at the meeting why the member is prohibited from participating in the discussion of or voting on the matter.
(b)iiA statement under Subsection (a)(2) shall be entered into the minutes of the meeting.
SECTIONi32.iiChapter 1001, Occupations Code, is amended by adding Subchapter M to read as follows:
SUBCHAPTER M. ADVISORY OPINIONS
Sec.i1001.601.iiBOARD ADVISORY OPINIONS. (a) On its own initiative or at the request of any interested person, the board shall prepare a written advisory opinion about an interpretation of this chapter or the application of this chapter to a person in regard to a specified existing or hypothetical factual situation. The board shall respond to requests for opinions within 180 days or affirmatively state its reason for not responding to the request.
Sec.i1001.602.iiMAINTENANCE OF OPINIONS; SUMMARY. The board shall:
(1)iinumber and classify each advisory opinion issued under this subchapter; and
(2)iiannually compile a summary of the opinions in a single reference document that is available on the Internet.
Sec.i1001.603.iiATTORNEY GENERAL'S OPINIONS. The authority of the board to issue an advisory opinion under this subchapter does not affect the authority of the attorney general to issue an opinion as authorized by law.
Sec.i1001.604.iiRELIANCE ON ADVISORY OPINION. It is a defense to prosecution or to imposition of a civil penalty that a person reasonably relied on a written advisory opinion of the board relating to:
(1)iithe provision of the law the person is alleged to have violated; or
(2)iia fact situation that is substantially similar to the fact situation in which the person is involved.
SECTIONi33.ii(a)iiNot later than January 1, 2004, the Texas Board of Professional Engineers shall adopt the rules required by Section 1001.2035, Occupations Code, as added by this Act.
(b)iiNot later than September 1, 2005, the Texas Board of Professional Engineers shall adopt the written guidelines required by Section 1001.4525, Occupations Code, as added by this Act.
(c)iiThe Texas Board of Professional Engineers is not required to issue an advisory opinion under Subchapter M, Chapter 1001, Occupations Code, as added by this Act, before January 1, 2004.
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SECTIONi34.ii(a)iiThis Act takes effect September 1, 2003.
(b)iiThe changes in law made by Sections 1001.102 and 1001.103, Occupations Code, as amended by this Act, and Section 1001.112, Occupations Code, as added by this Act, in the prohibitions on or qualifications of members of the Texas Board of Professional Engineers do not affect the entitlement of a member serving on the Texas Board of Professional Engineers immediately before September 1, 2003, to continue to serve and function as a member of the Texas Board of Professional Engineers for the remainder of the member's term. Those changes in law apply only to a member appointed on or after September 1, 2003.
(c)iiThe change in law made by Section 1001.108, Occupations Code, as amended by this Act, does not affect the entitlement of a person who was serving as presiding officer of the Texas Board of Professional Engineers immediately before September 1, 2003, to continue to serve and function in that capacity for the remainder of the person's term as presiding officer. That change in law applies only to the designation of a presiding officer of the board after that person's term as presiding officer expires.
(d)iiThe changes in law made by this Act to Chapter 1001, Occupations Code, relating to the investigation of a complaint apply only to a complaint filed with the Texas Board of Professional Engineers 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.
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
SENATE BILL 340
Senator Staples submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on SBi340 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.
| STAPLES | HILL | |
| WEST | LAUBENBERG | |
| AVERITT | PUENTE | |
| JANEK | MOWERY | |
| HEGAR | ||
| On the part of the Senate | On the part of the House |
4268 78th Legislature — Regular Session 82nd Day
A BILL TO BE ENTITLED
AN ACT
relating to the rendition and appraisal of property for ad valorem tax purposes and to the use of electronic means for certain interactions between property owners and appraisal districts, taxing units, or other tax officials; providing civil penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 1.085, Tax Code, is amended by amending Subsection (b) and adding Subsections (e)-(g) to read as follows:
(b)iiAn agreement between a chief appraiser and a property owner must:
(1)iibe in writing;
(2)iibe signed by the chief appraiser and the property owner; and
(3)iispecify:
(A)iithe medium of communication;
(B)iithe type of communication covered; [and]
(C)iithe means for protecting the security of a communication;
(D)iithe means for confirming delivery of a communication; and
(E)iithe electronic mail address of the property owner or person designated to represent the property owner under Section 1.111, as applicable.
(e)iiThe comptroller by rule:
(1)iishall prescribe acceptable media, formats, content, and methods for the electronic transmission of notices required by Section 25.19; and
(2)iimay prescribe acceptable media, formats, content, and methods for the electronic transmission of other notices, renditions, and applications.
(f)iiIn an agreement entered into under this section, a chief appraiser may select the medium, format, content, and method to be used by the appraisal district from among those prescribed by the comptroller under Subsection (e).
(g)iiNotwithstanding Subsection (a), if a property owner whose property is included in 25 or more accounts in the appraisal records of the appraisal district requests the chief appraiser to enter into an agreement for the delivery of the notice required by Section 25.19 in an electronic format, the chief appraiser must enter into an agreement under this section for that purpose and shall deliver the notice in accordance with an electronic medium, format, content, and method prescribed by the comptroller under Subsection (e).
SECTIONi2.iiSection 1.09, Tax Code, is amended to read as follows:
Sec.i1.09.iiAVAILABILITY OF FORMS. When a property owner is required by this title to use a form, the office or agency with which the form is filed shall make printed and electronic versions of the forms readily and timely available and shall furnish a property owner a form without charge.
SECTIONi3.iiSection 22.01, Tax Code, is amended by amending Subsection (a) and adding Subsections (f) through (j) to read as follows:
(a)iiExcept as provided by Chapter 24 [of this code], a person shall render for
taxation all tangible personal property used for the production of income that the
person [he] owns or that the person [he] manages and controls as a fiduciary on
January 1. A rendition statement shall contain:
(1)iithe name and address of the property owner;
(2)iia description of the property by type or category;
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(3)iiif the property is inventory, a description of each type of inventory and a general estimate of the quantity of each type of inventory;
(4)iithe physical location or taxable situs of the property; and
(5)iithe property owner's good faith estimate of the market value of the property or, at the option of the property owner, the historical cost when new and the year of acquisition of the property.
(f)iiNotwithstanding Subsections (a) and (b), a rendition statement of a person who owns tangible personal property used for the production of income located in the appraisal district that, in the owner's opinion, has an aggregate value of less than $20,000 is required to contain only:
(1)iithe name and address of the property owner;
(2)iia general description of the property by type or category; and
(3)iithe physical location or taxable situs of the property.
(g)iiA person's good faith estimate of the market value of the property under Subsection (a)(5) is solely for the purpose of compliance with the requirement to render tangible personal property and is inadmissible in any subsequent protest, hearing, appeal, suit, or other proceeding under this title involving the property, except for:
(1)iia proceeding to determine whether the person complied with this section;
(2)iia proceeding under Section 22.29(b); or
(3)iia protest under Section 41.41.
(h)iiIf the property that is the subject of the rendition is regulated by the Public Utility Commission of Texas, the Railroad Commission of Texas, the federal Surface Transportation Board, or the Federal Energy Regulatory Commission, the owner of the property is considered to have complied with the requirements of this section if the owner provides to the chief appraiser, on written request of the chief appraiser, a copy of the annual regulatory report covering the property and sufficient information to enable the chief appraiser to allocate the value of the property among the appropriate taxing units for which the appraisal district appraises property.
(i)iiSubsection (a) does not apply to a property owner whose property is subject to appraisal by a third party retained by the appraisal district if the property owner provides information substantially equivalent to that required by Subsection (a) regarding the property directly to the third party appraiser.
(j)iiSubsection (a) does not apply to property that is exempt from taxation.
SECTIONi4.iiSection 22.02, Tax Code, is amended to read as follows:
Sec.i22.02.iiRENDITION OF PROPERTY LOSING EXEMPTION DURING TAX YEAR OR FOR WHICH EXEMPTION APPLICATION IS DENIED. (a) If an exemption applicable to a property on January 1 terminates during the tax year, the person who owns or acquires the property on the date applicability of the exemption terminates shall render the property for taxation within 30 days after the date of termination.
(b)iiIf the chief appraiser denies an application for an exemption for property described by Section 22.01(a), the person who owns the property on the date the application is denied shall render the property for taxation in the manner provided by Section 22.01 within 30 days after the date of denial.
4270 78th Legislature — Regular Session 82nd Day
SECTIONi5.iiSection 22.07, Tax Code, is amended by adding Subsections (c) through (f) to read as follows:
(c)iiThe chief appraiser may request, either in writing or by electronic means, that the property owner provide a statement containing supporting information indicating how the value rendered under Section 22.01(a)(5) was determined. The statement must:
(1)iisummarize information sufficient to identify the property, including:
(A)iithe physical and economic characteristics relevant to the opinion of value, if appropriate; and
(B)iithe source of the information used;
(2)iistate the effective date of the opinion of value; and
(3)iiexplain the basis of the value rendered. If the property owner is a business with 50 employees or less, the property owner may base the estimate of value on the depreciation schedules used for federal income tax purposes.
(d)iiThe property owner shall deliver the statement to the chief appraiser, either in writing or by electronic means, not later than the 21st day after the date the chief appraiser's request is received. The owner's statement is solely for informational purposes and is not admissible in evidence in any subsequent protest, suit, appeal, or other proceeding under this title involving the property other than:
(1)iia proceeding to determine whether the property owner has complied with this section;
(2)iia proceeding under Section 22.29(b); or
(3)iia protest under Section 41.41.
(e)iiA statement provided under this section is confidential information and may not be disclosed, except as provided by Section 22.27.
(f)iiFailure to comply with this section in a timely manner is considered to be a failure to timely render under Section 22.01 and penalties as described in Section 22.28 shall be applied by the chief appraiser.
SECTIONi6.iiSection 22.23, Tax Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows:
(b)iiOn written request [For good cause shown in writing] by the property owner,
the chief appraiser shall [may] extend a deadline for filing a rendition statement or
property report [by written order] to May 15 [a date not later than April 30]. The chief
appraiser [However, if the property that is the subject of the rendition is regulated by
the Public Utility Commission of Texas or the Railroad Commission of Texas, the
chief appraiser, upon written request by the property owner, shall extend the filing
deadline until April 30, and] may further extend the deadline an additional 15 days
upon good cause shown in writing by the property owner.
(c)iiIf before December 1, 2003, a person files a rendition statement for the 2003 tax year that provides the information required by Section 22.01 as that section exists on January 1, 2004, and, as a result of that information, the chief appraiser discovers that some or all of that person's tangible personal property used for the production of income was omitted from the appraisal roll in one of the two preceding years, the chief appraiser may not add the value of the omitted property to the 2001 or 2002 appraisal roll. This subsection expires January 1, 2005.
Friday, May 30, 2003 SENATE JOURNAL 4271
SECTIONi7.iiSubsections (b), (c), and (d), Section 22.24, Tax Code, are amended to read as follows:
(b)iiA person filing a rendition or report shall include all information required by
Section 22.01 [the form].
(c)iiThe comptroller may prescribe or approve different forms for different kinds
of property but shall ensure that each form requires a property owner to furnish the
information necessary to identify the property and to determine its ownership,
taxability, and situs. A form may not require but may permit a property owner to
furnish information not specifically required by this chapter to be reported. In
addition, a form prescribed or approved under this subsection must contain the
following statement in bold type: "If you make a false statement on this form, you
could be found guilty of a Class A misdemeanor or a state jail felony under Section
37.10, Penal Code." [relevant to the appraisal of property for tax purposes or to the
assessment or collection of property taxes.]
(d)iiExcept as required by Section 22.01(a), a [A] rendition or report form shall
permit but [may] not require a property owner to state the owner's good faith estimate
of [his opinion about] the market value of the [his] property.
SECTIONi8.iiSubchapter B, Chapter 22, Tax Code, is amended by adding Sections 22.28, 22.29, and 22.30 to read as follows:
Sec.i22.28.iiPENALTY FOR DELINQUENT REPORT. (a)iiExcept as otherwise provided by Section 22.30, the chief appraiser shall impose a penalty on a person who fails to timely file a rendition statement or property report required by this chapter in an amount equal to 10 percent of the total amount of taxes imposed on the property for that year by taxing units participating in the appraisal district.
(b)iiThe chief appraiser may retain a portion of a penalty collected under this section, not to exceed 20 percent of the amount of the penalty, to cover the chief appraiser's costs of collecting the penalty. The chief appraiser shall distribute the remainder of the penalty to each taxing unit participating in the appraisal district that imposes taxes on the property in proportion to the taxing unit's share of the total amount of taxes imposed on the property by all taxing units participating in the district.
Sec.i22.29.iiPENALTY FOR FRAUD OR INTENT TO EVADE TAX. (a)iiThe chief appraiser shall impose an additional penalty on the person equal to 50 percent of the total amount of taxes imposed on the property for the tax year of the statement or report by the taxing units participating in the appraisal district if it is finally determined by a court that:
(1)iithe person filed a false statement or report with the intent to commit fraud or to evade the tax; or
(2)iithe person alters, destroys, or conceals any record, document, or thing, or presents to the chief appraiser any altered or fraudulent record, document, or thing, or otherwise engages in fraudulent conduct, for the purpose of affecting the course or outcome of an inspection, investigation, determination, or other proceeding before the appraisal district.
(b)iiEnforcement of this section shall be by a proceeding initiated by the district or county attorney of the county in which the appraisal is established, on behalf of the appraisal district.
4272 78th Legislature — Regular Session 82nd Day
(c)iiIn making a determination of liability under this section, the court shall consider:
(1)iithe person's compliance history with respect to paying taxes and filing statements or reports;
(2)iithe type, nature, and taxability of the specific property involved;
(3)iithe type, nature, size, and sophistication of the person's business or other entity for which property is rendered;
(4)iithe completeness of the person's records;
(5)iithe person's reliance on advice provided by the appraisal district that may have contributed to the violation;
(6)iiany change in appraisal district policy during the current or preceding tax year that may affect how property is rendered; and
(7)iiany other factor the court considers relevant.
(d)iiThe chief appraiser may retain a portion of a penalty collected under this section, not to exceed 20 percent of the amount of the penalty, to cover the chief appraiser's costs of collecting the penalty. The chief appraiser shall distribute the remainder of the penalty to each taxing unit participating in the appraisal district that imposes taxes on the property in proportion to the taxing unit's share of the total amount of taxes imposed on the property by all taxing units participating in the district.
Sec.i22.30.iiWAIVER OF PENALTY. (a)iiThe chief appraiser may waive the penalty imposed by Section 22.28 or 22.29 if the chief appraiser determines that the person exercised reasonable diligence to comply with or has substantially complied with the requirements of this chapter. A written request, accompanied by supporting documentation, stating the grounds on which penalties should be waived must be sent to the chief appraiser not later than the 30th day after the date the person received notification of the imposition of the penalty. The chief appraiser shall make a determination of the penalty waiver request based on the information submitted.
(b)iiThe chief appraiser shall notify the person of the chief appraiser's determination regarding the penalty waiver request after considering:
(1)iithe person's compliance history with respect to paying taxes and filing statements or reports;
(2)iithe type, nature, and taxability of the specific property involved;
(3)iithe type, nature, size, and sophistication of the person's business or other entity for which property is rendered;
(4)iithe completeness of the person's records;
(5)iithe person's reliance on advice provided by the appraisal district that may have contributed to the person's failure to comply and the imposition of the penalty;
(6)iiany change in appraisal district policy during the current or preceding tax year that may affect how property is rendered; and
(7)iiany other factors that may have caused the person to fail to timely file a statement or report.
(c)iiA property owner is entitled to protest before the appraisal review board the failure or refusal of a chief appraiser to waive a penalty under Subsection (a).
Friday, May 30, 2003 SENATE JOURNAL 4273
SECTIONi9.iiSection 23.23, Tax Code, is amended by adding Subsection (f) to read as follows:
(f)iiNotwithstanding Subsections (a) and (e) and except as provided by Subdivision (2), an improvement to property that would otherwise constitute a new improvement is not treated as a new improvement if the improvement is a replacement structure for a structure that was rendered uninhabitable or unusable by a casualty or by mold or water damage. For purposes of appraising the property in the tax year in which the structure would have constituted a new improvement:
(1)iithe last year in which the property was appraised for taxation before the casualty or damage occurred is considered to be the last year in which the property was appraised for taxation for purposes of Subsection (a)(2)(A); and
(2)iithe replacement structure is considered to be a new improvement only to the extent it is a significant improvement over the replaced structure as that structure existed before the casualty or damage occurred.
SECTIONi10.iiSection 25.19, Tax Code, is amended by adding Subsection (k) to read as follows:
(k)iiNotwithstanding any other provision of this section, the chief appraiser may not deliver a written notice concerning property that is required to be rendered or reported under Chapter 22 until after the applicable deadline for filing the rendition statement or property report.
SECTIONi11.iiSection 41.43, Tax Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:
(a)iiExcept as provided by Subsection (d), in [In] a protest authorized by Section
41.41(a)(1) [41.41(1)] or (2), the appraisal district has the burden of establishing the
value of the property by a preponderance of the evidence presented at the hearing. If
the appraisal district fails to meet that standard, the protest shall be determined in
favor of the property owner.
(d)iiIf the property owner fails to deliver, before the date of the hearing, a rendition statement or property report required by Chapter 22 or a response to the chief appraiser's request for information under Section 22.07(c), the property owner has the burden of establishing the value of the property by a preponderance of the evidence presented at the hearing. If the property owner fails to meet that standard, the protest shall be determined in favor of the appraisal district.
SECTIONi12.ii(a) Except as provided by Subsections (b) and (c) of this section, this Act takes effect January 1, 2004, and applies only to the rendition of property for ad valorem tax purposes for a tax year that begins on or after that date.
(b)iiSections 1.085 and 1.09, Tax Code, as amended by this Act, take effect January 1, 2005.
(c)iiSubsection (c), Section 22.23, Tax Code, as added by this Act, takes effect September 1, 2003, and applies to the rendition of property for ad valorem tax purposes for the 2003 tax year.
4274 78th Legislature — Regular Session 82nd Day
(d)iiSubsection (f), Section 23.23, Tax Code, as added by this Act, applies to the appraisal of property for a tax year beginning on or after the effective date of this Act regardless of whether the casualty or mold or water damage occurred before, on, or after the effective date of this Act.
(e)iiExcept as provided by Subsection (f) of this section, the changes in law made by this Act to Section 1.085, Tax Code, apply only to an agreement between a chief appraiser and a property owner entered into on or after January 1, 2005. An agreement between a chief appraiser and a property owner entered into before January 1, 2005, is governed by the law in effect on the date the agreement was entered into, and the former law is continued in effect for that purpose.
(f)iiNotwithstanding Subsection (b) of this section, in the case of an appraisal district established for a county with a population of 500,000 or less, the changes in law made by this Act to Section 1.085, Tax Code, apply only to an agreement between the chief appraiser and a property owner entered into on or after January 1, 2006. An agreement between the chief appraiser of such an appraisal district and a property owner entered into before January 1, 2006, is governed by the law in effect on the date the agreement was entered into, and the former law is continued in effect for that purpose.
(g)iiNotwithstanding Subsection (b) of this section, an appraisal district established in a county with a population of 500,000 or less or a taxing unit located in a county with a population of 500,000 or less is not required to comply with Section 1.09, Tax Code, as amended by this Act, until January 1, 2006.
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 3420
Senator Madla submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi3420 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
| MADLA | GARZA | |
| LUCIO | GUILLEN | |
| HARRIS | GRIGGS | |
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate.
Friday, May 30, 2003 SENATE JOURNAL 4275
CONFERENCE COMMITTEE REPORT ON
SENATE BILL 1015
Senator Wentworth submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on SBi1015 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.
| WENTWORTH | ELKINS | |
| ELLIS | KEEL | |
| WHITMIRE | WISE | |
| WILLIAMS | ||
| On the part of the Senate | On the part of the House |
A BILL TO BE ENTITLED
AN ACT
relating to the confidentiality of certain information regarding, and to the compensation of, a crime victim.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubchapter C, Chapter 552, Government Code, is amended by adding Section 552.1325 to read as follows:
Sec.i552.1325.iiCRIME VICTIM IMPACT STATEMENT: CERTAIN INFORMATION CONFIDENTIAL. (a)iiIn this section:
(1)ii"Crime victim" means a person who is a victim as defined by Article 56.32, Code of Criminal Procedure.
(2)ii"Victim impact statement" means a victim impact statement under Article 56.03, Code of Criminal Procedure.
(b)iiThe following information that is held by a governmental body or filed with a court and that is contained in a victim impact statement or was submitted for purposes of preparing a victim impact statement is confidential:
(1)iithe name, social security number, address, and telephone number of a crime victim; and
(2)iiany other information the disclosure of which would identify or tend to identify the crime victim.
SECTIONi2.iiArticle 56.32(a)(9), Code of Criminal Procedure, is amended to read as follows:
(9)ii"Pecuniary loss" means the amount of expense reasonably and necessarily incurred as a result of personal injury or death for:
(A)iimedical, hospital, nursing, or psychiatric care or counseling, or physical therapy;
(B)iiactual loss of past earnings and anticipated loss of future earnings and necessary travel expenses because of:
4276 78th Legislature — Regular Session 82nd Day
(i)iia disability resulting from the personal injury;
(ii)iithe receipt of medically indicated services related to the disability resulting from the personal injury; or
(iii)iiparticipation in or attendance at investigative, prosecutorial, or judicial processes related to the criminally injurious conduct and participation in or attendance at any postconviction or postadjudication proceeding relating to criminally injurious conduct;
(C)iicare of a child or dependent;
(D)iifuneral and burial expenses;
(E)iiloss of support to a dependent, consistent with Article 56.41(b)(5);
(F)iireasonable and necessary costs of cleaning the crime scene;
(G)iireasonable replacement costs for clothing, bedding, or property of
the victim seized as evidence or rendered unusable as a result of the criminal
investigation; [and]
(H)iireasonable and necessary costs, as provided by Article 56.42(d), incurred by a victim of family violence or a victim of sexual assault who is assaulted in the victim's place of residence for relocation and housing rental assistance payments; and
(I)iireasonable and necessary costs of traveling to and from a place of execution for the purpose of witnessing the execution, including one night's lodging near the place at which the execution is conducted.
SECTIONi3.iiThe change in law made by this Act in amending Article 56.32(a)(9), Code of Criminal Procedure, applies only to compensation for costs incurred on or after the effective date of this Act. Compensation for costs incurred before the effective date of this Act is covered by the law in effect on the date the costs were incurred, and the former law is continued in effect for that purpose.
SECTIONi4.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 Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 1865
Senator Williams submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi1865 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
Friday, May 30, 2003 SENATE JOURNAL 4277
| WILLIAMS | BONNEN | |
| STAPLES | B. KEFFER | |
| ARMBRISTER | THOMPSON | |
| FRASER | WILSON | |
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
SENATE BILL 117
Senator Staples submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on SBi117 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.
| STAPLES | HUPP | |
| JANEK | BERMAN | |
| GALLEGOS | ELLIS | |
| HOPSON | ||
| On the part of the Senate | On the part of the House |
A BILL TO BE ENTITLED
AN ACT
relating to the authority of certain retired peace officers and federal criminal investigators to carry certain weapons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSubchapter H, Chapter 1701, Occupations Code, is amended by adding Section 1701.357 to read as follows:
Sec.i1701.357.iiWEAPONS PROFICIENCY FOR CERTAIN RETIRED PEACE OFFICERS AND FEDERAL CRIMINAL INVESTIGATORS. (a) This section applies only to:
(1)iia peace officer designated as a peace officer under Article 2.12(1), (2), (3), or (10), Code of Criminal Procedure; and
(2)iia federal criminal investigator designated as a special investigator under Article 2.122(a)(1) or (5), Code of Criminal Procedure.
(b)iiThe head of a state or local law enforcement agency may allow an honorably retired peace officer of the agency to whom this section applies an opportunity to demonstrate weapons proficiency if the retired officer provides to the agency a sworn affidavit stating that:
(1)iithe officer honorably retired after not less than 20 years of service as a commissioned officer;
4278 78th Legislature — Regular Session 82nd Day
(2)iithe officer's license as a commissioned officer was not revoked or suspended for any period during the officer's term of service as a commissioned officer; and
(3)iithe officer has no psychological or physical disability that would interfere with the officer's proper handling of a handgun.
(c)iiThe agency shall establish written procedures for the issuance or denial of a certificate of proficiency under this section. The agency shall issue the certificate to a retired officer who satisfactorily demonstrates weapons proficiency under Subsection (b) and satisfies the written procedures established by the agency. The agency shall maintain records of any retired officer who holds a certificate issued under this section.
(d)iiA certificate issued under this section expires on the second anniversary of the date the certificate was issued.
(e)iiThe head of a state or local law enforcement agency may set and collect fees to recover the expenses the agency incurs in performing duties under this section.
(f)iiThe amount of a fee set by a county law enforcement agency under Subsection (e) is subject to the approval of the commissioners court of the county. A county law enforcement agency that collects a fee under Subsection (e) shall deposit the amounts collected to the credit of the general fund of the county.
(g)iiA county law enforcement agency must obtain approval of the program authorized by this section from the commissioners court of the county before issuing a certificate of proficiency under this section.
(h)iiThe head of a state law enforcement agency may allow an honorably retired federal criminal investigator to whom this section applies an opportunity to demonstrate weapons proficiency in the same manner as, and subject to the same requirements applicable to, an honorably retired peace officer as described by this section. The agency shall issue a certificate of proficiency to an honorably retired federal criminal investigator who otherwise meets the requirements of this section and shall maintain records regarding the issuance of that certificate.
SECTIONi2.iiSection 46.15(a), Penal Code, is amended to read as follows:
(a)iiSections 46.02 and 46.03 do not apply to:
(1)iipeace officers and neither section prohibits a peace officer from carrying a weapon in this state, regardless of whether the officer is engaged in the actual discharge of the officer's duties while carrying the weapon;
(2)iiparole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A)iiengaged in the actual discharge of the officer's duties while carrying the weapon; and
(B)iiin compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;
(3)iicommunity supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A)iiengaged in the actual discharge of the officer's duties while carrying the weapon; and
Friday, May 30, 2003 SENATE JOURNAL 4279
(B)iiauthorized to carry a weapon under Section 76.0051, Government
Code; [or]
(4)iia judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code; or
(5)iian honorably retired peace officer or federal criminal investigator who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that:
(A)iiverifies that the officer honorably retired after not less than 20 years of service as a commissioned officer; and
(B)iiis issued by the agency from which the peace officer retired or, for a federal criminal investigator, by a state law enforcement agency.
SECTIONi3.iiThis Act takes effect September 1, 2003.
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 2588
Senator Harris submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi2588 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
| HARRIS | GOODMAN | |
| MADLA | MORRISON | |
| LUCIO | REYNA | |
| BRIMER | BAXTER | |
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 1163
Senator Harris submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
4280 78th Legislature — Regular Session 82nd Day
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi1163 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
| HARRIS | THOMPSON | |
| ARMBRISTER | ELLIS | |
| RATLIFF | LAUBENBERG | |
| Y. DAVIS | ||
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
SENATE JOINT RESOLUTION 30
Senator Lindsay submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on SJRi30 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.
| LINDSAY | CALLEGARI | |
| BARRIENTOS | T. SMITH | |
| LUCIO | OLIVO | |
| ARMBRISTER | HILDERBRAN | |
| HEGAR | ||
| On the part of the Senate | On the part of the House |
A JOINT RESOLUTION
proposing a constitutional amendment relating to the provision of parks and recreational facilities by certain conservation and reclamation districts.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 59, Article XVI, Texas Constitution, is amended by amending Subsection (a) and adding Subsection (c-1) to read as follows:
(a)iiThe conservation and development of all of the natural resources of this State, and development of parks and recreational facilities, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes, the reclamation and irrigation of its arid, semi-arid and other lands needing irrigation, the reclamation
Friday, May 30, 2003 SENATE JOURNAL 4281
(c-1)iiIn addition and only as provided by this subsection, the Legislature may authorize conservation and reclamation districts to develop and finance with taxes those types and categories of parks and recreational facilities that were not authorized by this section to be developed and financed with taxes before September 13, 2003. For development of such parks and recreational facilities, the Legislature may authorize indebtedness payable from taxes as may be necessary to provide for improvements and maintenance only for a conservation and reclamation district all or part of which is located in Bexar County, Bastrop County, Waller County, Travis County, Williamson County, Harris County, Galveston County, Brazoria County, Fort Bend County, or Montgomery County, or for the Tarrant Regional Water District, a Water Control and Improvement District located in whole or in part in Tarrant County. All the indebtedness may be evidenced by bonds of the conservation and reclamation district, to be issued under regulations as may be prescribed by law. The Legislature may also authorize the levy and collection within such district of all taxes, equitably distributed, as may be necessary for the payment of the interest and the creation of a sinking fund for the payment of the bonds and for maintenance of and improvements to such parks and recreational facilities. The indebtedness shall be a lien on the property assessed for the payment of the bonds. The Legislature may not authorize the issuance of bonds or provide for indebtedness under this subsection against a conservation and reclamation district unless a proposition is first submitted to the qualified voters of the district and the proposition is adopted. This subsection expands the authority of the Legislature with respect to certain conservation and reclamation districts and is not a limitation on the authority of the Legislature with respect to conservation and reclamation districts and parks and recreational facilities pursuant to this section as that authority existed before September 13, 2003.
SECTIONi2.iiThe legislature intends by the amendment proposed by Section 1 of this resolution to expand the authority of the legislature with regard to certain conservation and reclamation districts. The proposed amendment should not be construed as a limitation on the powers of the legislature or of a district with respect to parks and recreational facilities as those powers exist immediately before the amendment takes effect.
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 relating to the provision of parks and recreational facilities by certain conservation and reclamation districts."
The Conference Committee Report was filed with the Secretary of the Senate.
4282 78th Legislature — Regular Session 82nd Day
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 111
Senator Zaffirini submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi111 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
| ZAFFIRINI | CHAVEZ | |
| SHAPLEIGH | MOWERY | |
| CARONA | WOHLGEMUTH | |
| GALLEGOS | URESTI | |
| HARRIS | CASTRO | |
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 547
Senator Averitt submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi547 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
| AVERITT | WOHLGEMUTH | |
| HINOJOSA | B. BROWN | |
| LINDSAY | DENNY | |
| WENTWORTH | HOCHBERG | |
| STICK | ||
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate.
Friday, May 30, 2003 SENATE JOURNAL 4283
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 1493
Senator Harris submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi1493 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
| HARRIS | SOLOMONS | |
| STAPLES | MARCHANT | |
| LUCIO | HUGHES | |
| GIDDINGS | ||
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate.
CONFERENCE COMMITTEE REPORT ON
HOUSE BILL 1129
Senator Gallegos submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on HBi1129 have had the same under consideration, and beg to report it back with the recommendation that it do pass.
| GALLEGOS | FARRAR | |
| MADLA | CALLEGARI | |
| BRIMER | THOMPSON | |
| DEUELL | BOHAC | |
| On the part of the Senate | On the part of the House |
The Conference Committee Report was filed with the Secretary of the Senate.
4284 78th Legislature — Regular Session 82nd Day
CONFERENCE COMMITTEE REPORT ON
SENATE BILL 1639
Senator Staples submitted the following Conference Committee Report:
Austin, Texas
May 30, 2003
Honorable David Dewhurst
President of the Senate
Honorable Tom Craddick
Speaker of the House of Representatives
Sirs:
We, Your Conference Committee, appointed to adjust the differences between the Senate and the House of Representatives on SBi1639 have had the same under consideration, and beg to report it back with the recommendation that it do pass in the form and text hereto attached.
| STAPLES | HOPE | |
| ARMBRISTER | R. COOK | |
| HINOJOSA | PUENTE | |
| GEREN | ||
| On the part of the Senate | On the part of the House |
A BILL TO BE ENTITLED
AN ACT
relating to regulating the waters of the state, including the spacing and production of groundwater and the control of instream flows.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTIONi1.iiSection 36.116, Water Code, is amended by adding Subsections (d) and (e) to read as follows:
(d)iiFor better management of the groundwater resources located in a district or if a district determines that conditions in or use of an aquifer differ substantially from one geographic area of the district to another, the district may adopt different rules for:
(1)iieach aquifer, subdivision of an aquifer, or geologic strata located in whole or in part within the boundaries of the district; or
(2)iieach geographic area overlying an aquifer or subdivision of an aquifer located in whole or in part within the boundaries of the district.
(e)iiIn regulating the production of groundwater under Subsection (a)(2), a district:
(1)iishall select a method that is appropriate based on the hydrogeological conditions of the aquifer or aquifers in the district; and
(2)iimay limit the amount of water produced based on contiguous surface acreage.
SECTIONi2.iiSubchapter B, Chapter 11, Water Code, is amended by adding Sections 11.0235, 11.0236, and 11.0237 to read as follows:
Sec.i11.0235.iiPOLICY REGARDING WATERS OF THE STATE. (a)iiThe waters of the state are held in trust for the public, and the right to use state water may be appropriated only as expressly authorized by law.
Friday, May 30, 2003 SENATE JOURNAL 4285
(b)iiMaintaining the biological soundness of the state's rivers, lakes, bays, and estuaries is of great importance to the public's economic health and general well-being.
(c)iiThe legislature has expressly required the commission while balancing all other interests to consider and provide for the freshwater inflows necessary to maintain the viability of the state's bay and estuary systems in the commission's regular granting of permits for the use of state waters.
(d)iiThe legislature has not expressly authorized granting water rights exclusively for:
(1)iiinstream flows dedicated to environmental needs or inflows to the state's bay and estuary systems; or
(2)iiother similar beneficial uses.
(e)iiThe fact that greater pressures and demands are being placed on the water resources of the state makes it of paramount importance to reexamine the process for ensuring that these important priorities are effectively addressed in clear delegations of authority to the commission.
Sec.i11.0236.iiSTUDY COMMISSION ON WATER FOR ENVIRONMENTAL FLOWS. (a)iiIn recognition of the importance that the ecological soundness of our riverine, bay, and estuary systems and riparian lands has on the economy, health, and well-being of the state there is created the Study Commission on Water for Environmental Flows.
(b)iiThe study commission is composed of 15 members as follows:
(1)iitwo members appointed by the governor;
(2)iifive members appointed by the lieutenant governor;
(3)iifive members appointed by the speaker of the house of representatives;
(4)iithe presiding officer of the commission or the presiding officer's designee;
(5)iithe chairman of the board or the chairman's designee; and
(6)iithe presiding officer of the Parks and Wildlife Commission or the presiding officer's designee.
(c)iiOf the members appointed under Subsection (b)(2):
(1)iione member must represent a river authority or municipal water supply agency or authority;
(2)iione member must represent an entity that is distinguished by its efforts in resource protection; and
(3)iithree members must be members of the senate.
(d)iiOf the members appointed under Subsection (b)(3):
(1)iione member must represent a river authority or municipal water supply agency or authority;
(2)iione member must represent an entity that is distinguished by its efforts in resource protection; and
(3)iithree members must be members of the house of representatives.
(e)iiEach appointed member of the study commission serves at the will of the person who appointed the member.
4286 78th Legislature — Regular Session 82nd Day
(f)iiThe appointed senator with the most seniority and the appointed house member with the most seniority serve together as co-presiding officers of the study commission.
(g)iiA member of the study commission is not entitled to receive compensation for service on the study commission but is entitled to reimbursement of the travel expenses incurred by the member while conducting the business of the study commission, as provided by the General Appropriations Act.
(h)iiThe study commission may accept gifts and grants from any source to be used to carry out a function of the study commission.
(i)iiThe commission shall provide staff support for the study commission.
(j)iiThe study commission shall conduct public hearings and study public policy implications for balancing the demands on the water resources of the state resulting from a growing population with the requirements of the riverine, bay, and estuary systems including granting permits for instream flows dedicated to environmental needs or bay and estuary inflows, use of the Texas Water Trust, and any other issues that the study commission determines have importance and relevance to the protection of environmental flows. In evaluating the options for providing adequate environmental flows, the study commission shall take notice of the strong public policy imperative that exists in this state recognizing that environmental flows are important to the biological health of our parks, game preserves, and bay and estuary systems and are high priorities in the permitting process. The study commission shall specifically address ways that the ecological soundness of these systems will be ensured in the water allocation process.
(k)iiThe study commission:
(1)iishall appoint an advisory scientific committee that will:
(A)iiserve as impartial scientific advisors and reviewers for the study commission; and
(B)iihave a membership of no fewer than five and no more than nine total members chosen by the study commission to represent a variety of areas of relevant technical expertise;
(2)iimay appoint additional advisory committees to assist the study commission; and
(3)iimay draft proposed legislation to modify existing water-rights permitting statutes.
(l)iiNot later than December 1, 2004, the study commission shall issue a report summarizing:
(1)iiany hearings conducted by the study commission;
(2)iiany studies conducted by the study commission;
(3)iiany legislation proposed by the study commission; and
(4)iiany other findings and recommendations of the study commission.
(m)iiThe study commission shall promptly deliver copies of the report to the governor, lieutenant governor, and speaker of the house of representatives.
(n)iiThe study commission shall adopt rules to administer this section.
(o)iiThe study commission is abolished and this section expires September 1, 2005.
Friday, May 30, 2003 SENATE JOURNAL 4287
Sec.i11.0237.iiWATER RIGHTS FOR INSTREAM FLOWS DEDICATED TO ENVIRONMENTAL NEEDS OR BAY AND ESTUARY INFLOWS. (a)iiThe commission may not issue a new permit for instream flows dedicated to environmental needs or bay and estuary inflows. This section does not prohibit the commission from issuing an amendment to an existing permit or certificate of adjudication to change the use to or add a use for instream flows dedicated to environmental needs or bay and estuary inflows.
(b)iiThis section does not alter the commission's obligations under Section 11.042(b), 11.046(b), 11.085(k)(2)(F), 11.134(b)(3)(D), 11.147, 11.1491, 16.058, or 16.059.
(c)iiThis section expires September 1, 2005.
SECTIONi3.iiSubsections (d) and (e), Section 11.147, Water Code, are amended to read as follows:
(d)iiIn its consideration of an application to store, take, or divert water, the
commission shall include in the permit, to the extent practicable when considering all
public interests, those conditions considered by the commission necessary to maintain
[consider the effect, if any, of the issuance of the permit on] existing instream uses and
water quality of the stream or river to which the application applies.
(e)iiThe commission shall include in the permit, to the extent practicable when
considering all public interests, those conditions considered by the commission
necessary to maintain [also consider the effect, if any, of the issuance of the permit on]
fish and wildlife habitats.
SECTIONi4.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 Conference Committee Report was filed with the Secretary of the Senate.
RESOLUTIONS OF RECOGNITION
The following resolutions were adopted by the Senate:
Memorial Resolutions
SCR 61 by Duncan, In memory of Susan Wilkes of Lubbock.
SR 1007 by Barrientos, In memory of Charles Miller Babb of Austin.
SR 1017 by Hinojosa, In memory of Clotilde Perez "Cleo" Garcia of Corpus Christi.
SR 1018 by Wentworth, In memory of Herbert William Vilim of San Antonio.
SR 1019 by Wentworth, In memory of John M. Smith, Jr., of San Antonio.
SR 1027 by Hinojosa, In memory of Xicotencatl "Xico" P. Garcia.
HCR 7 (Madla), In memory of Jose Ricardo Nevarez of Uvalde.
HCR 274 (Deuell), In memory of Quentin Miller of Cooper.
Congratulatory Resolutions
SR 1009 by Madla, Congratulating Luis A. Garcia of Eagle Pass for winning a scholarship in the Texas Tomorrow Funds Poster Contest.
4288 78th Legislature — Regular Session 82nd Day
SR 1012 by Barrientos, Congratulating O. H. "Ike" Harris of Austin on his 70th birthday.
SR 1020 by Zaffirini, Commending Joaquin G. Cigarroa for his career in the field of medicine.
SR 1022 by West, Commending Chante' B. Prox for her contributions to the office of Senator Royce West.
SR 1023 by West, Commending Delta Sigma Theta Sorority, Incorporated, for its accomplishments.
SR 1024 by Lucio, Commending Heriberto F. Longoria, Jr., for his service to the Lone Star State.
SR 1025 by Lucio, Congratulating Leslea Danielle and Cian Kerry Smith on the birth of their son, Xander Cianan Smith.
Official Designation Resolution
HCR 86 (Madla), Recognizing March 31, 2003, as Texas Civilian Conservation Corps Day at the State Capitol.
ADJOURNMENT
On motion of Senator Armbrister, the Senate at 8:30 p.m. adjourned, in memory of Searcy Bracewell of Houston, until 10:00ia.m. tomorrow.
AAAPPENDIXAA
SENT TO GOVERNOR
May 30, 2003
SBi5, SBi6, SBi18, SBi24, SBi25, SBi51, SBi92, SBi113, SBi115, SBi258, SBi325, SBi356, SBi439, SBi487, SBi494, SBi599, SBi613, SBi637, SBi681, SBi721, SBi739, SBi741, SBi757, SBi791, SBi805, SBi810, SBi837, SBi861, SBi891, SBi902, SBi905, SBi968, SBi972, SBi1019, SBi1022, SBi1109, SBi1127, SBi1128, SBi1159, SBi1180, SBi1211, SBi1215, SBi1230, SBi1315, SBi1362, SBi1388, SBi1459, SBi1461, SBi1484, SBi1546, SBi1559, SBi1581, SBi1614, SBi1665, SBi1700, SBi1794, SBi1805, SBi1826, SBi1899, SBi1925, SBi1928, SBi1930, SBi1933, SBi1935, SBi1940, SBi1948, SBi1955, SCRi46, SCRi49, SCRi58
Friday, May 30, 2003 SENATE JOURNAL 4289
In Memory
of
Searcy Bracewell
Senate Resolution 883
WHEREAS, The Senate of the State of Texas joins the citizens of Houston and Texans across the state in mourning the loss of the Honorable Searcy Bracewell, who died on May 13, 2003, at the age of 85; and
WHEREAS, Searcy Bracewell was born in Houston on January 19, 1918, to J. S. and Lola Blount Bracewell; and
WHEREAS, As a student at Texas A&M University, Mr. Bracewell was a member of the Corps of Cadets and was drum major of the Fightin' Texas Aggie Band; he graduated in 1938 and remained a lifelong and deeply committed supporter of his alma mater; he was chairman of the Sul Ross Group of the Texas A&M Former Students Association; and
WHEREAS, Searcy Bracewell attended Houston Law School and was admitted to the Texas State Bar in 1940; he was on the staff of General George Patton's Third Army during World War II; he was awarded the European Theater Medal with five battle stars for his service; and
WHEREAS, In 1945, he and his father and brother founded the law firm of Bracewell & Patterson, which is headquartered in Houston and now has offices in 11 cities in three countries; in addition to practicing law, he helped operate a family business, Broadway Plan, and he served as a managing director of Shearson Lehman Brothers; and
WHEREAS, Mr. Bracewell served in the Texas House of Representatives from 1947 to 1949 and in the Texas Senate from 1949 to 1959; he served as President Pro-Tem of the Texas Senate in 1957; during his tenure, his major legislative accomplishments included authoring bills establishing institutions that have since become The University of Texas M.D. Anderson Cancer Center and The University of Texas Health Science Center Dental School; and
WHEREAS, A highly respected leader in his community and state, Mr.iBracewell was involved in numerous civic and educational activities; notably, he served as president and chairman of the board of the Houston Grand Opera, a board member and interim president of the South Texas College of Law, a board member of the Houston Chamber of Commerce, and a trustee of the Houston Foundation; and
WHEREAS, In honor of his exceptional accomplishments, Mr.iBracewell was named a Texas A&M University Distinguished Alumnus in 1978; he received the Texas Aggie Lawyer of the Year Award, and was honored with the Corps of Cadets Hall of Honor Award in 2002; and
4290 78th Legislature — Regular Session 82nd Day
WHEREAS, Searcy Bracewell lived his life to the fullest and was a devoted husband, father, and grandfather, and he leaves behind memories that will be treasured forever by his family and many friends; now, therefore, be it
RESOLVED, That the Senate of the State of Texas, 78th Legislature, hereby extend sincere condolences to the bereaved family of Searcy Bracewell: his wife of 63 years, Elizabeth Weaver Bracewell; his son and daughter-in-law, Joe and Peggy Bracewell; his daughter and son-in-law, Betsy and David Machac; his brother, Fentress Bracewell; and his seven grandchildren and two great-grandchildren; and, be it further
RESOLVED, That a copy of this Resolution be prepared for the members of his family as an expression of deepest sympathy from the Texas Senate, and that when the Senate adjourns this day, it do so in memory of the Honorable Searcy Bracewell.
WHITMIRE
Friday, May 30, 2003 SENATE JOURNAL 4291