SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE — REGULAR SESSION

AUSTIN, TEXAS

PROCEEDINGS

SEVENTY-EIGHTH DAY

(Wednesday, May 25, 2005)

The Senate met at 11:00 a.m. pursuant to adjournment and was called to order by the President.

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

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

Rabbi Steven Morgen, Congregation Beth Yeshurun, Houston, offered the invocation as follows:

O God, source of life, of goodness, and of hope, we ask Your blessings for this great State of Texas, and for this noble assembly of government leaders of our state. Grant them wisdom and insight that they may administer all their business fairly and justly for the safety, happiness, and prosperity of all our citizens. May their deliberations be inspired by Your will, that differences of opinion may be expressed in an atmosphere of sincerity, courtesy, and mutual respect, and that debate and discussion may lead to inspired, creative, and fruitful plans and decisions which further enhance the quality of life for our citizens. Creator of all flesh, bless all the inhabitants of our state with Your spirit. May its citizens of all races and creeds forge a common bond to true harmony, to banish hatred and bigotry, and to safeguard the ideals and free institutions that are the pride and glory of our country and our state. May Your spirit never depart from our midst, and may we always recognize the many wondrous blessings that You have bestowed upon us, our state, and our country. And let us all say, Amen.

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

The motion prevailed without objection.

CO-AUTHOR OF SENATE BILL 934

On motion of Senator Wentworth, Senator West will be shown as Co-author of SBi934.

CO-SPONSOR OF HOUSE BILL 1546

On motion of Senator Staples, Senator Shapleigh will be shown as Co-sponsor of HBi1546.

CO-SPONSOR OF HOUSE JOINT RESOLUTION 54

On motion of Senator Staples, Senator Shapleigh will be shown as Co-sponsor of HJRi54.

SENATE RESOLUTION 1021

Senator Ogden offered the following resolution:

WHEREAS, The Senate of the State of Texas is pleased to recognize Major General Joseph F. Weber for his outstanding service to his country in the United States Marine Corps; and

WHEREAS, General Weber graduated from Texas A&M University as a member of the Corps of Cadets and was commissioned a second lieutenant in 1972; rising rapidly through the ranks, he served as a major on the staff of the Commandant of Midshipmen at the United States Naval Academy from 1983 to 1985; and

WHEREAS, He reported to The University of Texas at Austin in 1986 and earned a master's degree from the Lyndon B. Johnson School of Public Affairs; by 1993, he had been promoted to the rank of colonel, and in May of 1996, he assumed the duties as the commanding officer of the 11th Marine Regiment, Camp Pendleton, California; and

WHEREAS, He was promoted to the rank of brigadier general in 1998; in 2002, General Weber became commanding general of the Third Marine Division in Okinawa, Japan; and

WHEREAS, He was authorized to assume the title of major general in 2002, and he reported to Iraq in 2004 and served as chief of staff for the Multi-National Force-Iraq for 14 months; he received the Bronze Star for his participation in Operation Iraqi Freedom; and

WHEREAS, General Weber has been nominated to the rank of lieutenant general by Secretary of Defense Donald Rumsfeld; upon approval by the United States Senate, he will assume command of the III Marine Expeditionary Force; and

WHEREAS, The general and his wife, Brenda, have two children; their son, Clint, is a captain in the United States Marine Corps stationed in Beaufort, South Carolina, where he flies F-18s; their daughter, Julie, is earning a master's degree in social work at The University of Texas at Austin; and

WHEREAS, In General Weber's earliest days in Abilene, Texas, his friends called him "Jumbo", and they still greatly admire him today for his extraordinary service; he is truly a distinguished Texas patriot whose service to our country has been invaluable; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 79th Legislature, hereby commend Major General Joseph F. Weber for his lifelong achievements and his many years of meritorious service to the nation; and, be it further

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

SR 1021 was read.

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

On motion of Senator Ogden, the resolution was adopted without objection.

GUESTS PRESENTED

Senator Ogden was recognized and introduced to the Senate Major General Joseph F. Weber, United States Marine Corps, accompanied by his family and Captain Michael Ogden, son of Senator Ogden, along with other friends.

The Senate welcomed its guests.

MESSAGE FROM THE HOUSE

HOUSE CHAMBER

Austin, Texas

May 25, 2005

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 213, Honoring Carroll Hall Shelby for his lifetime achievements.

SCR 40, Commending the citizens of Terrell County for their many contributions to Texas and the nation and extending best wishes for a joyous Centennial Celebration.

Respectfully,

/s/Robert Haney, Chief Clerk

House of Representatives

SENATE RESOLUTION 997

Senator Carona offered the following resolution:

WHEREAS, Norman Brinker of Dallas has achieved extraordinary success in the restaurant business, and he is indeed worthy of special commendation for his myriad achievements; and

WHEREAS, Mr. Brinker demonstrated his drive and determination at a young age, working his way through school at the New Mexico Military Institute; after serving in the U.S. Navy, he earned a place on the 1952 U.S. Olympic equestrian team as well as the opportunity to compete in the 1954 Modern Pentathlon World Championships in Budapest; and

WHEREAS, Mr. Brinker subsequently enrolled in the marketing program at San Diego State University, again financing his own education; his 1957 graduation with honors heralded a new chapter in his life, one that would soon encounter great success

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WHEREAS, While his success at Jack-In-The-Box certainly proved his business acumen, it was his own venture that would cement his place as a leader in the restaurant industry; seeking to fill a niche for patrons between fast food and fine dining, he founded Steak & Ale restaurants and introduced a new concept now featured in restaurants around the globe, the salad bar; under Mr. Brinker's leadership, Steak & Ale thrived and boasted more than 100 outlets, including Bennigan's, by the time it merged with the Pillsbury Restaurant Group in 1976; and

WHEREAS, In 1982, Mr. Brinker continued his pursuit of new leadership opportunities, leaving Pillsbury to join Chili's, then a budding restaurant chain of 28 locations; within a year, he took the company public, beginning two decades of remarkable growth; today Brinker International is a Fortune 500 company traded on the New York Stock Exchange, with five distinct restaurant concepts and more than 1,500 locations in 49 states, the District of Columbia, and 24 countries; although he retired in 2000, Mr. Brinker continues to serve as chairman emeritus of the company; and

WHEREAS, Mr. Brinker's legacy is marked not only by the popular brands his company has grown, but also by the many people he has mentored and inspired in his more than 40 years in the restaurant business, including Chris Sullivan and Bob Basham of Outback Steakhouse, Wally Doolin of Buca di Beppo, Rick Federico of P.F. Chang's China Bistro, Dick Rivera, formerly of Darden Restaurants, Creed Ford of Austin-based Fired Up, Inc., and of course, current Brinker CEO Doug Brooks; and

WHEREAS, A deserving recipient of the Horatio Alger Award, Norman Brinker is truly an admirable role model for young Texans everywhere, and the story of his remarkable journey from humble beginnings to prosperity may serve to encourage others to pursue their dreams and ambitions; now, therefore, be it

RESOLVED, That the Senate of the 79th Texas Legislature hereby congratulate Norman Brinker on his many successes and extend to him sincere best wishes for continued achievement; and, be it further

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

SR 997 was read and was adopted without objection.

GUESTS PRESENTED

Senator Carona was recognized and introduced to the Senate Norman Brinker and his wife, Toni Brinker, accompanied by Joe Taylor, Vice-president, Corporate Affairs, Brinker International, and Kevan Fenderson, Director of Government Relations, Brinker International.

The Senate welcomed its guests.

GUESTS PRESENTED

Senator Zaffirini was recognized and introduced to the Senate Walter Creswell,iJr., Retired Colonel, United States Air Force, from Universal City.

Senator Zaffirini also introduced a group of high school seniors from Benavides.

The Senate welcomed its guests.

3288 79th Legislature — Regular Session 78th Day

PHYSICIAN OF THE DAY

Senator Janek was recognized and presented Dr. Daniel Voss of Georgetown as the Physician of the Day.

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

SENATE RESOLUTION 993

Senator Hinojosa offered the following resolution:

WHEREAS, Proud citizens of Corpus Christi are visiting the State Capitol on May 25, 2005, to celebrate the notable history and bright future of this South Texas city; and

WHEREAS, Corpus Christi traces its roots to a trading post established in 1839 on the western shore of Corpus Christi Bay; in 1846, the settlement that had grown up around the post became the county seat of the newly created Nueces County; and

WHEREAS, The city's growth was propelled in the 1870s by a flourishing wool trade, a booming cattle industry, and the arrival of the railroad; by 1914 Corpus Christi had four railroads, which promoted the area extensively to farmers and tourists; and

WHEREAS, Development was further boosted by the opening of a deepwater port in 1926 and by the discovery of oil in the county in 1930; the Port of Corpus Christi is now the fifth largest in the nation in terms of tonnage, and the petroleum and natural gas industries remain important pillars of the city's economy; another significant stimulus is the city's location within the new I-69 corridor, which links the United States with its two largest trading partners, Canada and Mexico; and

WHEREAS, The United States military maintains several nearby facilities–Naval Station Ingleside and Naval Air Station Corpus Christi; in addition to serving as a training field for pilots, the latter base is also home to the Coast Guard Air Station and the Corpus Christi Army Depot; and

WHEREAS, Two institutions of higher learning, Texas A&M University–Corpus Christi and Del Mar College, together enroll almost 20,000 students; other outstanding cultural and educational resources include the Art Museum of South Texas, the Corpus Christi Botanical Gardens, the Texas State Aquarium, and the Corpus Christi Museum of Science and History; visitors can also tour the USS Lexington, a record-holding World War II aircraft carrier, and replicas of the Niña, the Pinta, and the Santa María; and

WHEREAS, A favored destination for outdoors enthusiasts, the "Sparkling City by the Sea" is close to Mustang Island State Park and Padre Island National Seashore, which has a 68-mile beach that constitutes the longest undeveloped shoreline in the country; and

WHEREAS, The citizens of Corpus Christi are continuing to build a dynamic, forward-looking community, one that combines the friendliness of a small town with the amenities of a modern city, and it is indeed a pleasure to recognize their achievements and public spirit; now, therefore, be it

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RESOLVED, That the Senate of the State of Texas, 79th Legislature, hereby recognize May 25, 2005, as Corpus Christi Day at the State Capitol and extend to all those visiting today sincere best wishes for an enjoyable and memorable visit.

SR 993 was read and was adopted without objection.

GUESTS PRESENTED

Senator Hinojosa was recognized and introduced to the Senate a delegation of citizens from Corpus Christi, representing Corpus Christi Day at the State Capitol.

The Senate welcomed its guests.

(Senator Carona in Chair)

BILLS AND RESOLUTIONS SIGNED

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

SB 261, SB 736, SB 833, SB 863, SB 1214, SB 1792, SB 1800, SB 1801, SB 1802, SB 1803, SB 1804, SB 1805, SB 1808, SB 1810, SB 1855, SCR 40, SCR 41.

SENATE BILL 409 WITH HOUSE AMENDMENTS

Senator Nelson called SBi409 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 SBi409 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Office of Public Utility Counsel.

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

SECTIONi1.iiSection 13.002, Utilities Code, is amended to read as follows:

Sec.i13.002.iiAPPLICATION OF SUNSET ACT. The Office of Public Utility Counsel is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the office is abolished and this chapter expires September 1, 2011 [2005].

SECTIONi2.iiSections 13.003(a) and (c), Utilities Code, are amended to read as follows:

(a)iiThe office:

(1)iishall assess the effect of [utility] rate changes and other regulatory actions on residential consumers in this state;

(2)iishall advocate in the office's own name a position determined by the counselor [counsellor] to be most advantageous to a substantial number of residential consumers;

(3)iimay appear or intervene, as a party or otherwise, as a matter of right on behalf of:

3290 79th Legislature — Regular Session 78th Day

(A)iiresidential consumers, as a class, in any proceeding in which the counselor determines that residential consumers are in need of representation [before the commission], including an alternative dispute resolution proceeding; and

(B)iismall commercial consumers, as a class, in any proceeding in which the counselor [counsellor] determines that small commercial consumers are in need of representation, including an alternative dispute resolution proceeding;

(4)iimay initiate or intervene as a matter of right or otherwise appear in a judicial proceeding:

(A)iithat involves an action taken by an administrative agency in a proceeding, including an alternative dispute resolution proceeding, in which the counselor [counsellor] is authorized to appear; or

(B)iiin which the counselor [counsellor] determines that residential [electricity] consumers or small commercial [electricity] consumers are in need of representation;

(5)iiis entitled to the same access as a party, other than commission staff, to records gathered by the commission under Section 14.204;

(6)iiis entitled to discovery of any nonprivileged matter that is relevant to the subject matter of a proceeding or petition before the commission;

(7)iimay represent [an individual] residential or small commercial consumers, individually or as a class, [consumer] with respect to any [the consumer's disputed] complaint concerning electric or telecommunications [utility] services that is unresolved before the commission; [and]

(8)iimay represent residential and small commercial consumers, as a group or as a class, in any federal bankruptcy case in which the counselor determines that electric or telecommunications consumers in this state are in need of representation; and

(9)iimay recommend legislation to the legislature that the office determines would positively affect the interests of residential and small commercial consumers.

(c)iiThe appearance of the counselor [counsellor] in a proceeding does not preclude the appearance of other parties on behalf of residential or small commercial consumers. The counselor [counsellor] may not be grouped with any other party.

SECTIONi3.iiSubchapter A, Chapter 13, Utilities Code, is amended by adding Sections 13.004, 13.005, and 13.006 to read as follows:

Sec.i13.004.iiALTERNATIVE DISPUTE RESOLUTION PROCEDURES. (a) The counselor shall develop and implement a policy to encourage the use of appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal disputes under the office's jurisdiction.

(b)iiThe office'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 counselor 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 alternative dispute resolution; and

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

Sec.i13.005.iiTECHNOLOGY POLICY. The counselor shall implement a policy requiring the office to use appropriate technological solutions to improve the office's ability to perform its functions. The policy must ensure that the public is able to interact with the office on the Internet.

Sec.i13.006.iiMANAGEMENT AUDIT. (a) The state auditor, in coordination with the Legislative Budget Board, shall conduct a management audit of the office to evaluate the office's performance measures to determine the accuracy of calculations and whether the measures accurately depict the impact of the office. The audit must include an estimation of savings to residential and small commercial consumers directly attributable to office participation in proceedings.

(b)iiThe state auditor must complete the audit required by this section and deliver a report on the audit to the governor, lieutenant governor, and speaker of the house of representatives not later than August 1, 2006.

(c)iiThis section expires September 1, 2006.

SECTIONi4.iiSection 13.021, Utilities Code, is amended to read as follows:

Sec.i13.021.iiAPPOINTMENT; TERM. (a) The chief executive of the office is the counselor [counsellor].

(b)iiThe counselor [counsellor] is appointed by the governor with the advice and consent of the senate.

(c)iiThe appointment of the counselor [counsellor] shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.

(d)iiThe counselor [counsellor] serves a two-year term that expires on February 1 of the final year of the term.

SECTIONi5.iiSection 13.022, Utilities Code, is amended to read as follows:

Sec.i13.022.iiQUALIFICATIONS. (a) The counselor [counsellor] must:

(1)iibe licensed to practice law in this state;

(2)iihave demonstrated a strong commitment to and involvement in efforts to safeguard the rights of the public; and

(3)iipossess the knowledge and experience necessary to practice effectively in utility proceedings.

(b)iiA person is not eligible for appointment as counselor [counsellor] if:

(1)iithe person or the person's spouse:

(A)iiis employed by or participates in the management of a business entity or other organization that is regulated by or receives funds from the commission;

(B)iidirectly or indirectly owns or controls more than a 10 percent interest or a pecuniary interest with a value exceeding $10,000 in:

(i)iia business entity or other organization that is regulated by or receives funds from the commission or the office; or

(ii)iia utility competitor, utility supplier, or other entity affected by a commission decision in a manner other than by the setting of rates for that class of customer;

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(C)iiuses or receives a substantial amount of tangible goods, services, or funds from the commission or the office, other than compensation or reimbursement authorized by law for service as counselor [counsellor] or for commission membership, attendance, or expenses; or

(D)iinotwithstanding Paragraph (B), has an interest in a mutual fund or retirement fund in which more than 10 percent of the fund's holdings is in a single utility, utility competitor, or utility supplier in this state and the person does not disclose this information to the governor, senate, or other entity, as appropriate; or

(2)iithe person is not qualified to serve under Section 13.042.

(c)ii[A person 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 commission or the office may not serve as counsellor.

[(d)]iiA person otherwise ineligible because of Subsection (b)(1)(B) may be appointed and serve as counselor [counsellor] if the person:

(1)iinotifies the attorney general and commission that the person is ineligible because of Subsection (b)(1)(B); and

(2)iidivests the person or the person's spouse of the ownership or control:

(A)iibefore beginning service; or

(B)iiif the person is already serving, within a reasonable time.

SECTIONi6.iiSection 13.023, Utilities Code, is amended to read as follows:

Sec.i13.023.iiGROUNDS FOR REMOVAL. (a) It is a ground for removal from office if the counselor [counsellor]:

(1)iidoes not have at the time of taking office [appointment] or maintain during service as counselor [counsellor] the qualifications required by Section 13.022;

(2)iiis ineligible for service as counselor under [violates a prohibition provided by] Section 13.022, 13.042, or 13.043; or

(3)iicannot discharge the counselor's [counsellor's] duties for a substantial part of the term for which the counselor [counsellor] is appointed because of illness or disability.

(b)iiThe validity of an action of the office is not affected by the fact that the action is taken when a ground for removal of the counselor [counsellor] exists.

(c)iiIf an employee has knowledge that a potential ground for removal of the counselor exists, the employee shall notify the next highest ranking employee of the office, other than the counselor, who shall then notify the governor and the attorney general that a potential ground for removal exists.

SECTIONi7.iiSection 13.024, Utilities Code, is amended to read as follows:

Sec.i13.024.iiPROHIBITED ACTS. (a) The counselor [counsellor] may not have a direct or indirect interest in a utility company regulated under this title, its parent, or its subsidiary companies, corporations, or cooperatives or a utility competitor, utility supplier, or other entity affected in a manner other than by the setting of rates for that class of customer.

(b)iiThe prohibition under Subsection (a) applies during the period of the counselor's [counsellor's] service.

SECTIONi8.iiSection 13.041(a), Utilities Code, is amended to read as follows:

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(a)iiThe counselor [counsellor] may employ lawyers, economists, engineers, consultants, statisticians, accountants, clerical staff, and other employees as the counselor [counsellor] considers necessary to carry out this chapter.

SECTIONi9.iiSection 13.042, Utilities Code, is amended to read as follows:

Sec.i13.042.iiCONFLICT OF INTEREST [RELATIONSHIP WITH TRADE ASSOCIATION]. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest.

(b)iiA person may not serve as counselor [counsellor] or be an employee of the office 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.) [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 step 1, salary group 17, of the position classification salary schedule] if the person is:

(1)iian officer, employee, or paid consultant of a Texas trade association in the field of utilities; or

(2)iithe spouse of an officer, manager, or paid consultant of a Texas trade association in the field of utilities.

(c)iiA person may not serve as counselor or act as the general counsel to the office 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 office.

SECTIONi10.iiSection 13.044, Utilities Code, is amended to read as follows:

Sec.i13.044.iiCAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS; MERIT PAY. (a) The counselor [counsellor] or the counselor's [counsellor's] designee shall develop an intra-agency career ladder program that addresses opportunities for mobility and advancement for office employees. The program shall require intra-agency postings of each position concurrently with any public posting.

(b)iiThe counselor [counsellor] or the counselor's [counsellor's] designee shall develop a system of annual performance evaluations that are based on documented employee performance. Merit pay for office employees must be based on the system established under this subsection.

SECTIONi11.iiSection 13.045(a), Utilities Code, is amended to read as follows:

(a)iiThe counselor [counsellor] or the counselor's [counsellor's] designee shall prepare and maintain a written policy statement to ensure implementation of a program of equal employment opportunity under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin.

SECTIONi12.iiSection 13.063, Utilities Code, is amended to read as follows:

Sec.i13.063.iiANNUAL REPORTS [REPORT]. (a) The office shall prepare annually a complete and detailed written report accounting for all funds received and disbursed by the office during the preceding fiscal year. The annual report must meet the reporting requirements applicable to financial reporting in the General Appropriations Act.

3294 79th Legislature — Regular Session 78th Day

(b)iiThe office shall prepare annually a report on the office's activities during the preceding year and submit the report to the standing legislative committees that have jurisdiction over the office, the house appropriations committee, the senate finance committee, and the Sunset Advisory Commission. At a minimum, the report must include:

(1)iia list of the types of activities conducted by the office and the time spent by the office on each activity;

(2)iithe number of hours billed by the office for representing residential or small commercial consumers in proceedings;

(3)iithe number of staff positions and the type of work performed by each position; and

(4)iithe office's rate of success in representing residential or small commercial consumers in appealing commission decisions.

SECTIONi13.iiSubchapter D, Chapter 13, Utilities Code, is amended by adding Section 13.064 to read as follows:

Sec.i13.064.iiPUBLIC HEARING. (a) The office annually shall conduct a public hearing to assist the office in developing a plan of priorities and to give the public, including residential and small commercial consumers, an opportunity to comment on the office's functions and effectiveness.

(b)iiA public hearing held under this section is not subject to Chapter 551, Government Code.

(c)iiThe office shall file notice of a public hearing held under this section with the secretary of state for publication in the Texas Register.

SECTIONi14.iiSection 33.123(d), Utilities Code, is amended to read as follows:

(d)iiNot later than the 120th day after the date the commission enters its final order, the municipality shall assess a onetime surcharge on a per capita basis among residential ratepayers who reside outside the municipality to pay the reasonable consultant and legal costs approved by the counselor [counsellor]. The municipality shall reimburse the appellants for incurred costs not later than the 90th day after the date the commission enters its final order.

SECTIONi15.iiThe change in law made by this Act relating to qualifications and eligibility to serve as chief executive of or to be employed with the office of public utility counsel applies only to a person appointed or employed after the effective date of this Act. The chief executive or an employee of the office of public utility counsel who is serving or employed on the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTIONi16.iiThis Act takes effect September 1, 2005.

Floor Amendment No. 1

Amend CSSB 409 on page 4, between lines 21 and 22, add a new Section 13.007 to read as follows:

Sec. 13.007. COMPLAINTS. (a) The office shall maintain a system to promptly and efficiently act on complaints filed with the office that the office has the authority to resolve. The office shall maintain information about parties to the complaint, the subject matter of the complaint, a summary of the results of the review or investigation of the complaint, and its disposition.

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(b)iiThe office shall make information available describing its procedures for complaint investigation and resolution.

(c)iiThe office shall periodically notify the complaint parties of the status of the complaint until final disposition.

Floor Amendment No. 2 on Third Reading

Amend CSSB 409 on third reading by adding the following appropriately numbered SECTIONS and renumbering subsequent SECTIONS accordingly:

SECTION . Section 5.273(a), Water Code, is amended to read as follows:

(a) The counsel shall represent the public interest and be a party to all proceedings before the commission, other than a proceeding under Chapter 13.

SECTION . Subchapter B, Chapter 13, Water Code, is amended by adding Section 13.017 to read as follows:

Sec. 13.017. OFFICE OF PUBLIC UTILITY COUNSEL. (a) In this section, "counselor" and "office" have the meanings assigned by Section 11.003, Utilities Code.

(b) The office may represent the interests of residential and small commercial consumers under this chapter. In representing residential and small commercial consumers under this chapter, the office has the same powers and duties in relation to water issues that the office has under Chapter 13, Utilities Code, in relation to electricity and telecommunications issues, including the powers and duties prescribed by Section 13.003, Utilities Code.

(c) This section does not limit the authority of the commission to represent residential or small commercial consumers.

(d) The appearance of the counselor in a proceeding does not preclude the appearance of other parties on behalf of residential or small commercial consumers. The counselor may not be grouped with any other party.

SECTION . (a) Not later than January 1, 2006, the following are transferred from the Office of Public Interest Counsel to the Office of Public Utility Counsel:

(1) the powers, duties, functions, programs, and activities of the Office of Public Interest Counsel relating to water and sewer services regulated under Chapter 13, Water Code;

(2) all obligations and contracts of the Office of Public Interest Counsel that are related to a power, duty, function, program, or activity transferred under this subsection; and

(3) all property and records in the custody of the Office of Public Interest Counsel that are related to a power, duty, function, program, or activity transferred under this subsection and all funds appropriated by the legislature for that power, duty, function, program, or activity.

(b) A rule or form adopted by the Office of Public Interest Counsel that relates to a power, duty, function, program, or activity transferred under Subsection (a) of this section is a rule or form of the Office of Public Utility Counsel and remains in effect until altered by the Office of Public Utility Counsel.

(c) A reference in law to the Office of Public Interest Counsel that relates to a power, duty, function, program, or activity transferred under Subsection (a) of this section means the Office of Public Utility Counsel.

3296 79th Legislature — Regular Session 78th Day

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.

The Presiding Officer asked if there were any motions to instruct the conference committee on SBi409 before appointment.

There were no motions offered.

The Presiding Officer announced the appointment of the following conferees on the part of the Senate:iiSenators Nelson, Chair; Fraser, Eltife, Estes, and Harris.

SENATE BILL 419 WITH HOUSE AMENDMENTS

Senator Nelson called SBi419 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 419 by substituting in lieu thereof the following:

A BILL TO BE ENTITLED

AN ACT

relating to the continuation and functions of the Texas State Board of Medical Examiners, Texas State Board of Physician Assistant Examiners, and Texas State Board of Acupuncture Examiners and the regulation of health care professions regulated by those state agencies; providing administrative penalties.

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

ARTICLEi1.iiCONTINUATION AND FUNCTIONS OF

TEXAS STATE BOARD OF MEDICAL EXAMINERS

SECTIONi1.01.iiSections 151.002(a)(1) and (7), Occupations Code, are amended to read as follows:

(1)ii"Board" means the Texas Medical [State] Board [of Medical Examiners].

(7)ii"Medical peer review" or "professional review action" means the evaluation of medical and health care services, including evaluation of the qualifications and professional conduct of professional health care practitioners and of patient care provided by those practitioners. The term includes evaluation of the:

(A)iimerits of a complaint relating to a health care practitioner and a determination or recommendation regarding the complaint;

(B)iiaccuracy of a diagnosis;

(C)iiquality of the care provided by a health care practitioner;

(D)iireport made to a medical peer review committee concerning activities under the committee's review authority;

(E)iireport made by a medical peer review committee to another committee or to the board as permitted or required by law; and

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(F)iiimplementation of the duties of a medical peer review committee by a member, agent, or employee of the committee.

SECTIONi1.02.iiSection 151.004, Occupations Code, is amended to read as follows:

Sec.i151.004.iiAPPLICATION OF SUNSET ACT.iiThe Texas Medical [State] Board [of Medical 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 and Chapters 204, 205, and 206 expire [expires] Septemberi1, 2017 [2005].

SECTIONi1.03.iiSection 152.001, Occupations Code, is amended to read as follows:

Sec.i152.001.iiTEXAS MEDICAL [STATE] BOARD [OF MEDICAL EXAMINERS].ii(a) The Texas Medical [State] Board [of Medical Examiners] is an agency of the executive branch of state government with the power to regulate the practice of medicine.

(b)iiA reference in any other law to the former Texas State Board of Medical Examiners means the Texas Medical Board.

SECTIONi1.04.iiSection 152.003(b), Occupations Code, is amended to read as follows:

(b)iiA person may not be a public member of the board if the person or the person's spouse [may not be]:

(1)iiis registered, certified, or licensed by a regulatory agency in the field of health carei[licensed to practice medicine];

(2)iiis employed by or participates in the management of a business entity or other [financially involved in any] organization regulated by or receiving money from [subject to regulation by] the board; [or]

(3)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 board;

(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; or

(5)iiis a provider of health care.

SECTIONi1.05.iiSections 152.004(a)-(e), Occupations Code, are amended to read as follows:

(a)iiIn this section, "Texas trade [or professional] association" means a [nonprofit,] 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 is ineligible for appointment to the board if, at the time of appointment, the person is younger than 18 years of age or is a stockholder[, paid full-time faculty member,] or a member of the board of trustees of a medical school.

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(c)iiA person may not be a member of the board and may not be a board employee 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.), if:

(1)iithe person is an [serving as the president, vice president, secretary, or treasurer of a statewide or national organization incorporated to represent the entire profession licensed to practice medicine in this state or the United States, including an organization representing the practice of osteopathic medicine, or is an employee of such an organization.

[(d)iiAn] officer, employee, or paid consultant of a Texas trade [or professional] association in the field of health care or a national organization incorporated to represent the entire profession licensed to practice medicine in this state or the United States, including an organization representing the practice of osteopathic medicine; or

(2)iithe person's [may not be a board member or employee 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 step 1, salary group A17, of the position classification salary schedule.

[(e)iiA person who is the] spouse is [of] an officer, manager, or paid consultant of a Texas trade [or professional] association in the field of health care [may not be a board member or employee 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 step 1, salary group A17, of the position classification salary schedule].

SECTIONi1.06.iiSubchapter A, Chapter 152, Occupations Code, is amended by adding Section 152.0041 to read as follows:

Sec.i152.0041.iiRESTRICTION ON USE OF INFORMATION. A board member who is a physician or a physician acting as an agent of the board, including a member of an expert physician panel appointed under Section 154.056(e), may not use information to which the person has access solely by virtue of the person's position as a member or agent of the board for the benefit of the person's practice or for the benefit of another physician or person affiliated with the physician.

SECTIONi1.07.iiSections 152.006(a) and (c), 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 152.002;

(2)iidoes not maintain during service on the board the qualifications required by Section 152.002;

(3)iiis ineligible for membership under Sections 152.003 and [violates a prohibition established by Section] 152.004;

(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.

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

SECTIONi1.08.iiSection 152.008, Occupations Code, is amended to read as follows:

Sec.i152.008.iiOFFICERS.iiNot later than December after each regular session of the legislature, the governor shall appoint from the members of the board a president, to serve in that capacity at the pleasure of the governor, and the board shall elect from its members a vice president, secretary-treasurer, and other officers as are required, in the board's opinion, to carry out the board's duties.

SECTIONi1.09.iiSections 152.010(a)-(c), Occupations Code, are amended to read as follows:

(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 [Before a board member may assume the member's duties and before the member may be confirmed by the senate, the member must complete at least one course of] a training program that complies with [established by the board under] this section.

(b)iiThe training program must [shall] provide the person with information [to a participant] 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 laws relating to open meetings, public information, administrative procedure, and conflicts of interest [Chapters 551, 552, 2001, and 2002, Government Code]; and

(8)ii[the requirements of the conflict of interest laws and other laws relating to public officials; and

[(9)]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. [In developing the training program, the board shall consult with the governor, the attorney general, and the Texas Ethics Commission.]

SECTIONi1.10.iiSection 152.056, Occupations Code, is amended to read as follows:

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Sec.i152.056.iiDIVISION OF RESPONSIBILITIES.iiThe board shall develop and implement policies that clearly separate [define] the policy-making [respective] responsibilities of the board and the management responsibilities of the executive director and the staff of the board.

SECTIONi1.11.iiSubchapter A, Chapter 153, Occupations Code, is amended by adding Section 153.0015 to read as follows:

Sec.i153.0015.iiGUIDELINES FOR INPUT IN RULEMAKING. (a) The board shall adopt guidelines to establish procedures for receiving input during the rulemaking process from individuals and groups that have an interest in matters under the board's jurisdiction, including input from the Texas State Board of Physician Assistant Examiners and the Texas State Board of Acupuncture Examiners. The guidelines must provide an opportunity for those individuals and groups to provide input before the board provides notice of the proposed rule under Section 2001.023, Government Code.

(b)iiThe guidelines adopted under this section shall also include procedures for the board to receive comments on rules recommended by the physician assistant board or acupuncture board for adoption by the board.

(c)iiA rule adopted by the board may not be challenged on the grounds that the board did not comply with this section. If the board was unable to solicit a significant amount of input from the public or affected persons early in the rulemaking process, the board shall state in writing the reasons why the board was unable to do so.

SECTIONi1.12.iiSubchapter A, Chapter 153, Occupations Code, is amended by adding Section 153.0045 to read as follows:

Sec.i153.0045.iiRULES ON CONSEQUENCES OF CRIMINAL CONVICTION. The board shall adopt rules and guidelines as necessary to comply with Chapter 53, except to the extent the requirements of this subtitle are stricter than the requirements of that chapter.

SECTIONi1.13.iiSubchapter B, Chapter 153, Occupations Code, is amended by adding Sections 153.057 and 153.058 to read as follows:

Sec.i153.057.iiUSE OF TECHNOLOGY. The board shall implement a policy requiring the board to use appropriate technological solutions to improve the board's ability to perform its functions. The policy must ensure that the public is able to interact with the board on the Internet.

Sec.i153.058.iiNEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a) The board shall develop and implement a policy to encourage the use of:

(1)iinegotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of 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:

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(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.

SECTIONi1.14.iiSection 154.003, Occupations Code, is amended by adding Subsection (d) to read as follows:

(d)iiExcept as provided by this subsection, the board shall publish information regarding errors in and reversals of disciplinary actions taken by the board. The information to be published under this subsection includes instances in which a disciplinary action initiated by the board is overturned by a court. The board shall disseminate the information under this subsection in the same format, size, style, and manner as the information regarding the original action by the board was disseminated. The board may not publish information under this subsection if the physician who was the subject of the disciplinary action requests that the information not be published.

SECTIONi1.15.iiSection 154.052, Occupations Code, is amended to read as follows:

Sec.i154.052.iiRECORDS OF COMPLAINTS. The board shall maintain a system to promptly and efficiently act on complaints filed with the board. The board shall maintain [keep an] information [file] about [each complaint filed with the board. The information file must be kept current and contain a record for each complaint of]:

(1)iithe parties to the complaint;

(2)iithe subject matter of the complaint;

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

(4)iithe disposition of the complaint [each potential witness contacted in relation to the complaint;

[(2)iia summary of findings made at each step of the complaint process;

[(3)iian explanation of the legal basis and reason for the dismissal of a complaint;

[(4)iithe schedule for the disposition of the complaint prepared as required under Section 154.056 and a notation of any change in the schedule; and

[(5)iiother relevant information].

SECTIONi1.16.iiSection 154.053(c), Occupations Code, is amended to read as follows:

(c)iiThe board shall periodically [If a written complaint is filed with the board that the board has authority to resolve, the board, at least as frequently as quarterly and until final disposition of the complaint, shall] notify the parties to the complaint of the status of the complaint until final disposition unless the notice would jeopardize an investigation.

SECTIONi1.17.iiSection 154.056(e), Occupations Code, is amended to read as follows:

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(e)iiThe board by rule shall provide for an expert physician panel appointed by the board to assist with complaints and investigations relating to medical competency by acting as expert physician reviewers. Each member of the [an] expert physician panel must be licensed to practice medicine in this state. The rules adopted under this subsection must include provisions governing the composition of the panel, qualifications for membership on the panel, length of time a member may serve on the panel, grounds for removal from the panel, the avoidance of conflicts of interest, including situations in which the affected physician and the panel member live or work in the same geographical area or are competitors, and the duties to be performed by the panel. The board's rules governing grounds for removal from the panel must include providing for the removal of a panel member who is repeatedly delinquent in reviewing complaints and in submitting reports to the board. The board's rules governing appointment of expert physician panel members to act as expert physician reviewers must include a requirement that the board randomly select, to the extent permitted by Section 154.058(b) and the conflict of interest provisions adopted under this subsection, panel members to review a complaint.

SECTIONi1.18.iiSubchapter B, Chapter 154, Occupations Code, is amended by adding Section 154.0561 to read as follows:

Sec.i154.0561.iiPROCEDURES FOR EXPERT PHYSICIAN REVIEW. (a) A physician on the expert physician panel authorized by Section 154.056(e) who is selected to review a complaint shall:

(1)iidetermine whether the physician who is the subject of the complaint has violated the standard of care applicable to the circumstances; and

(2)iiissue a preliminary written report of that determination.

(b)iiA second expert physician reviewer shall review the first physician's preliminary report and other information associated with the complaint. If the second expert physician agrees with the first expert physician, the first physician shall issue a final written report on the matter.

(c)iiIf the second expert physician does not agree with the conclusions of the first expert physician, a third expert physician reviewer shall review the preliminary report and information and decide between the conclusions reached by the first two expert physicians. The final written report shall be issued by the third physician or the physician with whom the third physician concurs.

(d)iiIn reviewing a complaint, the expert physician reviewers assigned to examine the complaint may consult and communicate with each other about the complaint in formulating their opinions and reports.

SECTIONi1.19.iiSection 154.057(b), Occupations Code, is amended to read as follows:

(b)iiThe board shall complete [make] a preliminary investigation of the complaint not later than the 30th day after the date of receiving the complaint. The board shall first determine whether the physician constitutes a continuing threat to the public welfare. On completion of the preliminary investigation, the board shall determine whether to officially proceed on the complaint. If the board fails to complete the preliminary investigation in the time required by this subsection, the board's official investigation of the complaint is considered to commence on that date.

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SECTIONi1.20.iiSection 155.002, Occupations Code, is amended to read as follows:

Sec.i155.002.iiISSUANCE OF LICENSE. (a) The board, at its sole discretion, may issue a license to practice medicine to a person who:

(1)iisubmits to the board a license application as required by this chapter;

(2)iipresents satisfactory proof that the person meets the eligibility requirements established by this chapter; and

(3)iisatisfies the examination requirements of Section 155.051.

(b)iiThe board may delegate authority to board employees to issue licenses under this subtitle to applicants who clearly meet all licensing requirements. If the board employees determine that the applicant does not clearly meet all licensing requirements, the application shall be returned to the board. A license issued under this subsection does not require formal board approval.

SECTIONi1.21.iiSection 155.003(a), Occupations Code, is amended to read as follows:

(a)iiTo be eligible for a license under this chapter, an applicant must present proof satisfactory to the board that the applicant:

(1)iiis at least 21 years of age;

(2)iiis of good professional character and has not violated Section 164.051, 164.052, or 164.053;

(3)iihas completed:

(A)iiat least 60 semester hours of college courses, other than courses in medical school, that are acceptable to The University of Texas at Austin for credit on a bachelor of arts degree or a bachelor of science degree;

(B)iithe entire primary, secondary, and premedical education required in the country of medical school graduation, if the medical school is located outside the United States or Canada; or

(C)iisubstantially equivalent courses as determined by board rule;

(4)iiis a graduate of a medical school located in the United States or Canada and approved by the board;

(5)iihas either:

(A)iisuccessfully completed one year of graduate medical training approved by the board in the United States or Canada; or

(B)iigraduated from a medical school located outside the United States or Canada and has successfully completed three years of graduate medical training approved by the board in the United States or Canada;

(6)iihas passed [within three attempts] an examination accepted or administered by the board[, except as provided by Section 155.056]; and

(7)iihas passed a Texas medical jurisprudence examination as determined by board rule.

SECTIONi1.22.iiSubchapter A, Chapter 155, Occupations Code, is amended by adding Section 155.006 to read as follows:

Sec.i155.006.iiISSUANCE OF LIMITED LICENSE. (a)iiThe board may adopt rules and prescribe fees related to the issuance of a license under this section that is limited in scope to an applicant by virtue of the applicant's conceded eminence and authority in the applicant's specialty.

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(b)iiAn applicant is eligible for a limited license under this section on presenting proof satisfactory to the board that the applicant:

(1)iiis recommended to the board by the dean, president, or chief academic officer of:

(A)iia school of medicine in this state;

(B)iiThe University of Texas Health Center at Tyler;

(C)iiThe University of Texas M. D. Anderson Cancer Center; or

(D)iia program of graduate medical education, accredited by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association, that exceeds the requirements for eligibility for first board certification in the discipline;

(2)iiis expected to receive an appointment at the institution or program making the recommendation under Subdivision (1);

(3)iihas not failed a licensing examination that would prevent the applicant from obtaining a full license not limited in scope in this state;

(4)iihas passed a Texas medical jurisprudence examination as determined by board rule;

(5)iihas successfully completed at least one year of approved subspecialty training accredited by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association;

(6)iiis of good professional character, is not subject to denial of a license under Section 164.051, and has not engaged in conduct described by Section 164.052 or 164.053; and

(7)iimeets any other requirements prescribed by board rule adopted under this section.

(c)iiIn adopting rules under this section, the board may adopt rules that prescribe additional qualifications for an applicant, including education and examination requirements, conditions of employment, and application procedures. The board by rule may qualify, restrict, or otherwise limit a license issued under this section.

(d)iiThe board by rule may define "conceded eminence and authority in the applicant's specialty." In adopting rules under this subsection, the board shall consider criteria that include a person's:

(1)iiacademic appointments;

(2)iilength of time in a profession;

(3)iischolarly publications; and

(4)iiprofessional accomplishments.

(e)iiThe board may require that the holder of a license under this section serve a six-month probationary period during which medical services provided by the license holder are supervised by another licensed physician.

(f)iiThe holder of a license under this section shall be limited to the practice of only a specialty of medicine for which the license holder has trained and qualified, as determined by the board. The license holder may not practice medicine outside of the setting of the institution or program that recommended the license holder under Subsection (b)(1).

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(g)iiThe holder of a license under this section may not change the license holder's practice setting to a new institution or program unless the license holder applies for a new license under this section with the recommendation of that institution or program as required by Subsection (b)(1).

(h)iiA license holder under this section may obtain a full license not limited in scope to practice medicine in this state by meeting all applicable eligibility requirements for that license.

SECTIONi1.23.iiSubchapter A, Chapter 155, Occupations Code, is amended by adding Section 155.009 to read as follows:

Sec.i155.009.iiLIMITED LICENSE FOR PRACTICE OF ADMINISTRATIVE MEDICINE. (a) The board shall adopt rules for the issuance of a license that limits the license holder to the practice of administrative medicine. The board's rules under this section must include provisions for eligibility for the license, issuance and renewal of the license, the fees applicable to the license, continuing education requirements, and the scope of practice of a person who holds the license.

(b)iiAn applicant for a license under this section must meet all of the requirements for issuance of a license under Section 155.002.

(c)iiA license holder under this section who seeks to practice medicine under an unrestricted license that is not limited to the practice of administrative medicine must provide proof to the board that the license holder has the clinical competence to practice medicine under that license and must meet all applicable eligibility requirements for that license. The board may require the license holder to pass any examination the board determines necessary.

SECTIONi1.24.iiSection 155.056, Occupations Code, is amended to read as follows:

Sec.i155.056.iiEXAMINATION ATTEMPT LIMITS [REEXAMINATION]. (a) An applicant must pass each part of an examination within three attempts[, except that an applicant who has passed all but one part of an examination within three attempts may take the remaining part of the examination one additional time].

(b)iiThe board shall adopt rules that prescribe how the limit on the number of examination attempts under Subsection (a) shall apply to an applicant who seeks a license and who attempts more than one type of examination. [Notwithstanding Subsection (a), an applicant is considered to have satisfied the requirements of this section if the applicant:

[(1)iipassed all but one part of an examination approved by the board within three attempts and passed the remaining part of the examination within five attempts;

[(2)iiis specialty board certified by a specialty board that:

[(A)iiis a member of the American Board of Medical Specialties; or

[(B)iiis approved by the American Osteopathic Association; and

[(3)iicompleted in this state an additional two years of postgraduate medical training approved by the board.]

SECTIONi1.25.iiSection 155.104, Occupations Code, is amended to read as follows:

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Sec.i155.104.iiTEMPORARY LICENSES.ii(a) The board may adopt rules and set fees relating to granting temporary licenses and extending the expiration dates of temporary licenses. The board by rule shall set a time limit for the term of a temporary license.

(b)iiThe board may issue a faculty temporary license to practice medicine to a physician appointed by a medical school in this state as provided by this section. The physician:

(1)iimust hold a current medical license that is unrestricted and not subject to a disciplinary order or probation in another state or Canadian province or have completed at least three years of postgraduate residency;

(2)iimay not hold a medical license in another state or a Canadian province that has any restrictions, disciplinary orders, or probation;

(3)iimust pass the Texas medical jurisprudence examination; and

(4)iimust hold a salaried faculty position of at least the level of assistant professor and be working full-time at one of the following institutions:

(A)iiThe University of Texas Medical Branch at Galveston;

(B)iiThe University of Texas Southwestern Medical Center at Dallas;

(C)iiThe University of Texas Health Science Center at Houston;

(D)iiThe University of Texas Health Science Center at San Antonio;

(E)iiThe University of Texas Health Center at Tyler;

(F)iiThe University of Texas M. D. Anderson Cancer Center;

(G)iiTexas A&M University College of Medicine;

(H)iiTexas Tech University School of Medicine;

(I)iiBaylor College of Medicine; or

(J)iithe University of North Texas Health Science Center at Fort Worth.

(c)iiA physician is eligible for a temporary license under Subsection (b) if the physician holds a faculty position of at least the level of assistant professor and works at least part-time at an institution listed in Subsection (b)(4) and:

(1)iithe physician is on active duty in the United States armed forces; and

(2)iithe physician's practice under the temporary license will fulfill critical needs of the citizens of this state.

(d)iiA physician who is issued a temporary license under Subsection (b) must sign an oath on a form prescribed by the board swearing that the physician:

(1)iihas read and is familiar with this subtitle and board rules;

(2)iiwill abide by the requirements of this subtitle and board rules while practicing under the physician's temporary license; and

(3)iiwill be subject to the disciplinary procedures of the board.

(e)iiA physician holding a temporary license under Subsection (b) and the physician's medical school must file affidavits with the board affirming acceptance of the terms and limits imposed by the board on the medical activities of the physician.

(f)iiA temporary license issued under Subsection (b) is valid for one year.

(g)iiThe holder of a temporary license issued under Subsection (b) is limited to the teaching confines of the applying medical school as a part of the physician's duties and responsibilities assigned by the school and may not practice medicine outside of the setting of the medical school or an affiliate of the medical school. The physician

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(h)iiThe application for a temporary license under Subsection (b) must be made by the chairman of the department of the medical school in which the physician teaches and must contain the information and documentation requested by the department. The application must be endorsed by the dean of the medical school or the president of the institution.

(i)iiThree years in a teaching faculty position at an institution listed in Subsection (b)(4) may be treated as equivalent to three years of an approved postgraduate residency program if, at the conclusion of the three-year period, the physician presents recommendations on the physician's behalf from the chief administrative officer and the president of the institution.

(j)iiA physician who holds a temporary license issued under Subsection (b) and who wishes to receive a permanent unrestricted license must meet the requirements for issuance of a permanent unrestricted license, including any examination requirements.

SECTIONi1.26.iiSection 156.001(a), Occupations Code, is amended to read as follows:

(a)iiEach person licensed to practice medicine in this state must register with the board every two years. The initial registration permit shall be issued with the license [and expires on the last day of the birth month of the license holder]. The board by rule may adopt a system under which licenses expire on various dates during the year.

SECTIONi1.27.iiSection 157.051(2), Occupations Code, is amended to read as follows:

(2)ii"Carrying out or signing a prescription drug order" means completing a prescription drug order presigned by the delegating physician, or the signing of a prescription by a registered nurse or physician assistant [after that person has been designated to the board by the delegating physician as a person delegated to sign a prescription].

SECTIONi1.28.iiSection 157.0511, Occupations Code, is amended by adding Subsection (b-1) to read as follows:

(b-1)iiThe board shall adopt rules that require a physician who delegates the carrying out or signing of a prescription drug order under this subchapter to maintain records that show when and to whom a delegation is made. The board may access the physician's records under this subsection as necessary for an investigation.

SECTIONi1.29.iiSection 160.006, Occupations Code, is amended by amending Subsections (a) and (c) and adding Subsections (d) and (e) to read as follows:

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

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

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

(3)iiunder a court order;

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

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

(c)iiA record or report disclosed by the board under this subchapter, [and] a record or report received, maintained, or developed by the board, a medical peer review committee, a member of the committee, or a health care entity, and a record or report received or maintained by the State Office of Administrative Hearings under this subchapter are not available for discovery or court subpoena and may not be introduced into evidence in any action for damages, including a medical professional liability action that arises out of the provision of or failure to provide a medical or health care service.

(d)iiMedical peer review documents remain confidential at the board and at the State Office of Administrative Hearings. If medical peer review documents are admitted into evidence for any purpose at a proceeding before the State Office of Administrative Hearings, the documents must be admitted under seal to protect the confidentiality of the records as provided by this section and Section 160.007.

(e)iiThe confidentiality requirements of this section do not apply to records used by a medical peer review committee, including a patient's medical records, if the records are available to the board through a means other than a medical peer review committee's records.

SECTIONi1.30.iiSection 160.010, Occupations Code, is amended by adding Subsection (e) to read as follows:

(e)iiA member of an expert panel under Section 154.056(e) and a person serving as a consultant to the board are immune from suit and judgment and may not be subjected to a suit for damages for any investigation, report, recommendation, statement, evaluation, finding, or other action taken without fraud or malice in the course of performing the person's duties in evaluating a medical competency case. The attorney general shall represent a member of an expert panel or consultant in any suit resulting from a duty provided by the person in good faith to the board.

SECTIONi1.31.iiSection 162.103, Occupations Code, is amended to read as follows:

Sec.i162.103.iiAPPLICABILITY.iiRules adopted by the board under this subchapter do not apply to:

(1)iian outpatient setting in which only local anesthesia, peripheral nerve blocks, or both are used;

(2)ii[an outpatient setting in which only anxiolytics and analgesics are used and only in doses that do not have the probability of placing the patient at risk for loss of the patient's life-preserving protective reflexes;

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[(3)]iia licensed hospital, including an outpatient facility of the hospital that is located separate from the hospital;

(3)i[(4)]iia licensed ambulatory surgical center;

(4)i[(5)]iia clinic located on land recognized as tribal land by the federal government and maintained or operated by a federally recognized Indian tribe or tribal organization as listed by the United States secretary of the interior under 25 U.S.C. Section 479a-1 or as listed under a successor federal statute or regulation;

(5)i[(6)]iia facility maintained or operated by a state or local governmental entity;

(6)i[(7)]iia clinic directly maintained or operated by the United States; or

(7)i[(8)]iian outpatient setting accredited by:

(A)iithe Joint Commission on Accreditation of Healthcare Organizations relating to ambulatory surgical centers;

(B)iithe American Association for the Accreditation of Ambulatory Surgery Facilities; or

(C)iithe Accreditation Association for Ambulatory Health Care.

SECTIONi1.32.iiSections 163.003(a) and (f), Occupations Code, are amended to read as follows:

(a)iiA committee consists of seven [five] members appointed by the governor, as follows:

(1)iithree physician members who are doctors of medicine (M.D.);

(2)iione physician member who is a doctor of osteopathic medicine (D.O.); and

(3)iithree [one] public members [member].

(f)iiA member of a committee is subject to law and the rules of the board, including Sections 152.004, 152.006, and 152.010, as if the committee member were a member of the board, except that a committee member is not subject to Chapter 572, Government Code. The training program a committee member must complete under Section 152.010 shall be an abbreviated version of the program under that section that is limited to training relevant to serving on a committee.

SECTIONi1.33.iiChapter 163, Occupations Code, is amended by adding Section 163.0045 to read as follows:

Sec.i163.0045.iiASSISTANCE TO BOARD. The board may request members of a committee to participate in an informal meeting under Section 164.003. A physician committee member who participates in an informal meeting on a complaint relating to medical competency must have the qualifications of a member of an expert panel under Section 154.056(e).

SECTIONi1.34.iiSection 164.001, Occupations Code, is amended by adding Subsection (j) to read as follows:

(j)iiIn determining the appropriate disciplinary action, including the amount of any administrative penalty to impose, the board shall consider whether the violation relates directly to patient care or involves only an administrative violation.

SECTIONi1.35.iiSection 164.002, Occupations Code, is amended by adding Subsection (e) to read as follows:

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(e)iiThe board may not dismiss a complaint solely on the grounds that the case has not been scheduled for an informal meeting within the time required by Section 164.003(b).

SECTIONi1.36.iiSubchapter A, Chapter 164, Occupations Code, is amended by adding Section 164.0025 to read as follows:

Sec.i164.0025.iiDELEGATION OF CERTAIN COMPLAINT DISPOSITIONS. (a) The board may delegate to a committee of board employees the authority to dismiss or enter into an agreed settlement of a complaint that does not relate directly to patient care or that involves only administrative violations. The disposition determined by the committee must be approved by the board at a public meeting.

(b)iiA complaint delegated under this section shall be referred for informal proceedings under Section 164.003 if:

(1)iithe committee of employees determines that the complaint should not be dismissed or settled;

(2)iithe committee is unable to reach an agreed settlement; or

(3)iithe affected physician requests that the complaint be referred for informal proceedings.

SECTIONi1.37.iiSection 164.003, Occupations Code, is amended by amending Subsection (b) and adding Subsections (f), (g), and (h) to read as follows:

(b)iiRules adopted under this section must require that:

(1)iian informal meeting in compliance with Section 2001.054, Government Code, be scheduled not later than the 180th day after the date the board's official investigation of the complaint is commenced as provided by [filed with the board under] Section 154.057(b) [154.051], unless good cause is shown by the board for scheduling the informal meeting after that date;

(2)iithe board give notice to the license holder of the time and place of the meeting not later than the 30th day before the date the meeting is held;

(3)iithe complainant and the license holder be provided an opportunity to be heard;

(4)iiat least one of the board members or district review committee members participating in the informal meeting as a panelist be a member who represents the public;

(5)iithe board's legal counsel or a representative of the attorney general be present to advise the board or the board's staff; and

(6) [(5)]iia member of the board's staff be at the meeting to present to the board's representative the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.

(f)iiThe notice required by Subsection (b)(2) must be accompanied by a written statement of the nature of the allegations and the information the board intends to use at the meeting. If the board does not provide the statement or information at that time, the license holder may use that failure as grounds for rescheduling the informal meeting. If the complaint includes an allegation that the license holder has violated the standard of care, the notice must include a copy of the report by the expert physician reviewer. The license holder must provide to the board the license holder's rebuttal at least five business days before the date of the meeting in order for the information to be considered at the meeting.

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(g)iiThe board by rule shall define circumstances constituting good cause for purposes of Subsection (b)(1), including the extended illness of a board investigator and an expert physician reviewer's delinquency in reviewing and submitting a report to the board.

(h)iiSection 164.007(c) applies to the board's investigation file used in an informal meeting under this section.

SECTIONi1.38.iSubchapter A, Chapter 164, Occupations Code, is amended by adding Sections 164.0031 and 164.0032 to read as follows:

Sec.i164.0031.iiBOARD REPRESENTATION IN INFORMAL PROCEEDINGS. (a) In an informal meeting under Section 164.003 or an informal hearing under Section 164.103, at least two panelists shall be appointed to determine whether an informal disposition is appropriate. At least one of the panelists must be a physician.

(b)iiNotwithstanding Subsection (a) and Section 164.003(b)(4), an informal proceeding may be conducted by one panelist if the affected physician waives the requirement that at least two panelists conduct the informal proceeding. If the physician waives that requirement, the panelist may be either a physician or a member who represents the public.

(c)iiThe panel requirements described by Subsection (a) do not apply to an informal proceeding conducted by the board under Section 164.003 to show compliance with an order of the board.

Sec.i164.0032.iiROLES AND RESPONSIBILITIES OF PARTICIPANTS IN INFORMAL PROCEEDINGS. (a) A board member or district review committee member that serves as a panelist at an informal meeting under Section 164.003 shall make recommendations for the disposition of a complaint or allegation. The member may request the assistance of a board employee at any time.

(b)iiBoard employees shall present a summary of the allegations against the affected physician and of the facts pertaining to the allegation that the employees reasonably believe may be proven by competent evidence at a formal hearing.

(c)iiA board attorney shall act as counsel to the panel and, notwithstanding Subsection (e), shall be present during the informal meeting and the panel's deliberations to advise the panel on legal issues that arise during the proceeding. The attorney may ask questions of participants in the informal meeting to clarify any statement made by the participant. The attorney shall provide to the panel a historical perspective on comparable cases that have appeared before the board, keep the proceedings focused on the case being discussed, and ensure that the board's employees and the affected physician have an opportunity to present information related to the case. During the panel's deliberations, the attorney may be present only to advise the panel on legal issues and to provide information on comparable cases that have appeared before the board.

(d)iiThe panel and board employees shall provide an opportunity for the affected physician and the physician's authorized representative to reply to the board employees' presentation and to present oral and written statements and facts that the physician and representative reasonably believe could be proven by competent evidence at a formal hearing.

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(e)iiAn employee of the board who participated in the presentation of the allegation or information gathered in the investigation of the complaint, the affected physician, the physician's authorized representative, the complainant, the witnesses, and members of the public may not be present during the deliberations of the panel. Only the members of the panel and the board attorney serving as counsel to the panel may be present during the deliberations.

(f)iiThe panel shall recommend the dismissal of the complaint or allegations or, if the panel determines that the affected physician has violated a statute or board rule, the panel may recommend board action and terms for an informal settlement of the case.

(g)iiThe panel's recommendations under Subsection (f) must be made in a written order and presented to the affected physician and the physician's authorized representative. The physician may accept the proposed settlement within the time established by the panel at the informal meeting. If the physician rejects the proposed settlement or does not act within the required time, the board may proceed with the filing of a formal complaint with the State Office of Administrative Hearings.

(h)iiIf the board rejects the panel's recommendation for settlement or dismissal, the board shall notify the physician and state in the board's minutes the reason for rejecting the recommendation and specify further action to be considered. In determining the appropriate further action to be taken, the board shall consider previous attempts to resolve the matter.

SECTIONi1.39.iiSubchapter A, Chapter 164, Occupations Code, is amended by adding Section 164.0036 to read as follows:

Sec.i164.0036.iiNOTICE REGARDING CERTAIN COMPLAINTS. (a) If an informal meeting is not scheduled for a complaint before the 180th day after the date the board's official investigation of the complaint is commenced under Section 154.057(b), the board shall provide notice to all parties to the complaint. The notice must include an explanation of the reason why the informal meeting has not been scheduled. The notice under this subsection is not required if the notice would jeopardize an investigation.

(b)iiThe board must include in its annual report to the legislature information about any complaint for which notice is required under Subsection (a), including the reason for failing to schedule the informal meeting before the 180-day deadline. The information provided under this subsection must also list any complaint in which the investigation has extended beyond the first anniversary of the date the complaint was filed with the board.

SECTIONi1.40.iiSection 164.007, Occupations Code, is amended by adding Subsection (a-1) to read as follows:

(a-1)iiThe board may change a finding of fact or conclusion of law or vacate or modify an order of the administrative law judge only if the board makes a determination required by Section 2001.058(e), Government Code.

SECTIONi1.41.iiSubchapter A, Chapter 164, Occupations Code, is amended by adding Section 164.0071 to read as follows:

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Sec.i164.0071.iiHEARINGS ON CERTAIN COMPLAINTS. (a) In a formal hearing described by Section 164.007 in which the sole basis for disciplinary action is the basis described by Section 164.051(a)(7), the board shall provide evidence from the board's investigation that shows the basis for the board's findings required by that subdivision.

(b)iiIn any formal hearing described by Section 164.007, information obtained as a result of peer review may not be used as evidence except as the basis for the opinion of an expert witness called by the board.

(c)iiA member of a peer review committee is not subject to subpoena and may not be compelled to provide evidence in a formal hearing.

SECTIONi1.42.iiSection 164.056, Occupations Code, is amended by amending Subsection (a) and adding Subsections (d) and (e) to read as follows:

(a)iiIn enforcing Section 164.051(a)(4), the board, on probable cause, shall request the affected physician or applicant to submit to a mental or physical examination by physicians designated by the board. The board shall adopt guidelines, in conjunction with persons interested in or affected by this section, to enable the board to evaluate circumstances in which a physician or applicant may be required to submit to an examination for mental or physical health conditions, alcohol and substance abuse, or professional behavior problems.

(d)iiThe board shall refer a physician or applicant with a physical or mental health condition to the most appropriate medical specialist for evaluation. The board may not require a physician or applicant to submit to an examination by a physician having a specialty specified by the board unless medically indicated. The board may not require a physician or applicant to submit to an examination to be conducted an unreasonable distance from the person's home or place of business unless the physician or applicant resides and works in an area in which there are a limited number of physicians able to perform an appropriate examination.

(e)iiThe guidelines adopted under this section do not impair or remove the board's power to make an independent licensing decision.

SECTIONi1.43.iiSection 164.202, Occupations Code, is amended to read as follows:

Sec.i164.202.iiREHABILITATION ORDER.ii(a) The board, through an agreed order or after a contested proceeding, may impose a nondisciplinary rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder, based on:

(1)iiintemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;

(2)iiself-reported intemperate use of drugs or alcohol during the five years preceding the report that could adversely affect the reporter's ability to practice medicine safely, if:

(A)iithe reporting individual has not previously been the subject of a substance abuse-related order of the board; and

(B)iithe applicant or license holder has not committed a violation of the standard of care as a result of the intemperate use of drugs or alcohol;

(3)iia judgment by a court that the applicant or license holder is of unsound mind;

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(4)iia determination of impairment based on a mental or physical examination offered to establish the impairment in an evidentiary hearing before the board in which the applicant or license holder was provided an opportunity to respond; or

(5)iian admission by the applicant or license holder indicating that the applicant or license holder suffers from a potentially dangerous limitation or an inability to practice medicine with reasonable skill and safety by reason of illness or as a result of any physical or mental condition.

(b)iiThe board may not issue an order under this section if, before the individual signs the proposed order, the board receives a valid complaint with regard to the individual based on the individual's intemperate use of drugs or alcohol in a manner affecting the standard of care.

(c)iiThe board must determine whether an individual has committed a standard of care violation described by Subsection (a)(2) before imposing an order under this section.

(d)iiThe board may disclose a rehabilitation order to a local or statewide private medical association only as provided by Section 164.205.

SECTIONi1.44.iiSubchapter E, Chapter 164, Occupations Code, is amended by adding Section 164.205 to read as follows:

Sec.i164.205.iiRESPONSIBILITIES OF PRIVATE MEDICAL ASSOCIATIONS. (a) If a rehabilitation order imposed under Section 164.202 requires a license holder to participate in activities or programs provided by a local or statewide private medical association, the board shall inform the association of the license holder's duties under the order. The information provided under this section must include specific guidance to enable the association to comply with any requirements necessary to assist in the physician's rehabilitation.

(b)iiThe board may provide to the association any information that the board determines to be necessary, including a copy of the rehabilitation order. Any information received by the association remains confidential, is not subject to discovery, subpoena, or other means of legal compulsion, and may be disclosed only to the board.

SECTIONi1.45.iiSubchapter E, Chapter 164, Occupations Code, is amended by adding Section 164.206 to read as follows:

Sec.i164.206.iiREFUND. (a) Subject to Subsection (b), the board may order a license holder to pay a refund 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 Chapter 165.

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

SECTIONi1.46.iiThe heading to Subchapter B, Chapter 165, Occupations Code, is amended to read as follows:

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SUBCHAPTER B. INJUNCTIVE RELIEF AND
OTHER ENFORCEMENT PROVISIONS

SECTIONi1.47.iiSubchapter B, Chapter 165, Occupations Code, is amended by adding Section 165.052 to read as follows:

Sec.i165.052.iiCEASE AND DESIST ORDER. (a) If it appears to the board that a person who is not licensed under this subtitle is violating this subtitle, a rule adopted under this subtitle, or another state statute or rule relating to the practice of medicine, the board after notice and opportunity for a hearing may issue a cease and desist order prohibiting the person from engaging in the activity.

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

SECTIONi1.48.iiThe following laws are repealed:

(1)iiSection 152.010(d), Occupations Code; and

(2)iiSections 157.0542(d)-(h), Occupations Code.

SECTIONi1.49.iiNot later than January 1, 2006, the Texas Medical Board shall:

(1)iiadopt the policies required by Sections 153.057 and 153.058, Occupations Code, as added by this article; and

(2)iiadopt the rules required by Subtitle B, Title 3, Occupations Code, as amended by this article.

SECTIONi1.50. (a) The changes in law made by Sections 152.003, 152.006, and 152.010, Occupations Code, as amended by this article, regarding the prohibitions on or qualifications of members of the Texas Medical Board do not affect the entitlement of a member serving on the board immediately before September 1, 2005, to continue to serve and function as a member of the board for the remainder of the member's term. The changes in law made by those sections apply only to a member appointed on or after September 1, 2005.

(b)iiThe Texas Medical Board shall adopt rules necessary to implement the requirements of Section 155.006, Occupations Code, as added by this article, not later than March 1, 2006.

(c)iiThe changes in law made by this article related to the filing, investigation, or disposition of a complaint under Subtitle B, Title 3, Occupations Code, as amended by this article, apply only to a complaint filed with the Texas Medical Board on or after the effective date of this Act. A complaint filed 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.

(d)iiThe changes in law made by this article governing the eligibility of a person for a license under Subtitle B, Title 3, Occupations Code, apply only to an application for a license filed on or after the effective date of this Act. A license application filed before the effective date of this Act is governed by the law in effect at the time the application was filed, and the former law is continued in effect for that purpose.

(e)iiThe change in law made by this article with respect to conduct that is grounds for imposition of a disciplinary sanction, including a refund or cease and desist order, applies only to conduct that occurs on or after the effective date of this Act. Conduct that occurs before the effective date of this Act is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

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SECTIONi1.51.iiMEDICAL PEER REVIEW STUDY. (a) The presiding officer of each house of the legislature shall appoint a joint interim committee to study the medical peer review process in hospitals and other health care entities in this state. The study shall include an examination of:

(1)iithe use of medical peer review in identifying and reporting to the Texas Medical Board the conduct of or the quality of care provided by physicians who are members of the medical staffs of hospitals and other health care entities;

(2)iithe use of medical peer review in disciplining a physician based on the conduct or quality of care provided by the physician as a member of the medical staff of a hospital or other health care entity;

(3)iithe appropriate level of immunity protections for hospitals and other health care entities, medical peer review committees, and individuals who participate on those committees in health care liability claims brought by patients alleging bad faith physician credentialing; and

(4)iiwhether there are adequate mechanisms in state law to ensure appropriate regulatory supervision of the appropriateness and effectiveness of medical peer review in hospitals and other health care entities.

(b)iiAs part of the joint interim committee's study, the committee shall investigate:

(1)iithe adequacy of the Texas Medical Board's oversight and investigation of physician claims that the medical peer review process is misused, including whether the board's oversight and investigation powers should be strengthened and how other states investigate claims of misuse of the medical peer review process;

(2)iithe state regulatory reporting mechanisms relating to the appropriateness and effectiveness of medical peer review in hospitals and other health care entities and the oversight and authority of the state to ensure good faith medical peer review in hospitals and other health care entities in this state;

(3)iithe potentially negative impact on medical peer review in this state that could result from potential changes to:

(A)iiimmunity protections; or

(B)iithe oversight and investigation of physician claims of misuse of the medical peer review process;

(4)iihow the laws of other states address immunity protections for medical peer review; and

(5)iiany other matter relevant to the medical peer review process, including how state and federal law identifies physician conduct that is considered to be unprofessional or unsafe by a medical peer review committee.

(c)iiThe Department of State Health Services and the Texas Medical Board shall provide information and assistance to the joint interim committee in conducting the investigation required by this section on the committee's request.

(d)iiNot later than January 1, 2007, the joint interim committee shall report the committee's findings to the governor, lieutenant governor, and speaker of the house of representatives.

(e)iiThis section expires September 1, 2007.

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ARTICLE 2. CONTINUATION AND FUNCTIONS OF TEXAS STATE

BOARD OF PHYSICIAN ASSISTANT EXAMINERS

SECTIONi2.01.iiSection 204.002(1), Occupations Code, is amended to read as follows:

(1)ii"Medical board" means the Texas [State Board of] Medical Board [Examiners].

SECTIONi2.02.iiSection 204.052, Occupations Code, is amended to read as follows:

Sec.i204.052.iiAPPOINTMENT OF BOARD.ii(a) The physician assistant board consists of nine members appointed by the governor with the advice and consent of the senate as follows:

(1)iithree practicing physician assistant members who each have at least five years of clinical experience as a physician assistant;

(2)iithree physician members who are licensed in this state and who supervise physician assistants; and

(3)iithree public members who are not licensed as a physician or physician assistant.

(b)iiAppointments to the physician assistant board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.

SECTIONi2.03.iiSection 204.053, Occupations Code, is amended to read as follows:

Sec.i204.053.iiMEMBERSHIP ELIGIBILITY AND RESTRICTIONS. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or profession problems and in promoting their common interest.

(b)iiA person may not be [is not eligible for appointment as] a public member of the physician assistant 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 health care; [or]

(2)iiis employed by or participates in the management of a business entity or other organization regulated by or receiving money from the medical board or physician assistant board;

(3)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 medical board or physician assistant board; or

(4)iiuses or receives a substantial amount of tangible goods, services, or money from the medical board or physician assistant board other than compensation or reimbursement authorized by law for physician assistant board membership, attendance, or expenses [that provides health care services or that sells, manufactures, or distributes health care supplies or equipment].

(c)i[(b)]iiA person may not be [serve as] a member of the physician assistant board and may not be a medical board employee 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.), if:

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(1)iithe person is an officer, employee, or paid consultant of a Texas trade association in the field of health care; or

(2)iithe person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health care.

(d)iiA person may not be a member of the physician assistant board or act as the general counsel to the physician assistant 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 medical board or physician assistant board.

SECTIONi2.04.iiSection 204.055, Occupations Code, is amended to read as follows:

Sec.i204.055.iiOFFICERS. The governor shall designate a member of the physician assistant board as the presiding officer of the board to serve in that capacity at the will of the governor. The physician assistant board shall select from its membership a [presiding officer and a] secretary to serve a one-year term [terms].

SECTIONi2.05.iiSection 204.056, 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 physician assistant board that a member:

(1)iidoes not have at the time of taking office [appointment] the qualifications required by Sections 204.052 and 204.053 [this subchapter for appointment to the board];

(2)iidoes not maintain during [the] service on the physician assistant board the qualifications required by Sections 204.052 and 204.053 [this subchapter for appointment to the board]; [or]

(3)iiis ineligible for membership under Section 204.053;

(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 physician assistant board meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the board [fails to attend at least one-half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year].

(c)iiIf the executive director of the medical board has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the physician assistant 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 physician assistant board, who shall then notify the governor and the attorney general that a potential ground for removal exists.

SECTIONi2.06.iiSubchapter B, Chapter 204, Occupations Code, is amended by adding Section 204.059 to read as follows:

Sec.i204.059.iiTRAINING. (a) A person who is appointed to and qualifies for office as a member of the physician assistant 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.

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

(1)iithis chapter and the physician assistant board's programs, functions, rules, and budget;

(2)iithe results of the most recent formal audit of the physician assistant board;

(3)iithe requirements of laws relating to open meetings, public information, administrative procedure, and conflicts of interest; and

(4)iiany applicable ethics policies adopted by the physician assistant board or the Texas Ethics Commission.

(c)iiA person appointed to the physician assistant 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.

SECTIONi2.07.iiSubchapter C, Chapter 204, Occupations Code, is amended by adding Section 204.1015 to read as follows:

Sec.i204.1015.iiGUIDELINES FOR EARLY INVOLVEMENT IN RULEMAKING PROCESS. (a) The physician assistant board shall adopt guidelines to establish procedures for receiving input during the rulemaking process from individuals and groups that have an interest in matters under the board's jurisdiction. The guidelines must provide an opportunity for those individuals and groups to provide input before the physician assistant board submits the rule to the medical board for approval.

(b)iiA rule adopted by the medical board may not be challenged on the grounds that the physician assistant board did not comply with this section. If the physician assistant board was unable to solicit a significant amount of input from the public or affected persons early in the rulemaking process, the physician assistant board shall state in writing the reasons why the physician assistant board was unable to do so.

SECTIONi2.08.iiSubchapter C, Chapter 204, Occupations Code, is amended by adding Section 204.105 to read as follows:

Sec.i204.105.iiRULES ON CONSEQUENCES OF CRIMINAL CONVICTION. The physician assistant board shall adopt rules and guidelines as necessary to comply with Chapter 53, except to the extent the requirements of this chapter are stricter than the requirements of Chapter 53.

SECTIONi2.09.iiSubchapter C, Chapter 204, Occupations Code, is amended by adding Section 204.106 to read as follows:

Sec.i204.106.iiDIVISION OF RESPONSIBILITIES. Subject to the advice and approval of the medical board, the physician assistant board shall develop and implement policies that clearly separate the policy-making responsibilities of the physician assistant board and the management responsibilities of the executive director and the staff of the medical board.

SECTIONi2.10.iiSubchapter C, Chapter 204, Occupations Code, is amended by adding Section 204.107 to read as follows:

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Sec.i204.107.iiPUBLIC PARTICIPATION. Subject to the advice and approval of the medical board, the physician assistant board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the physician assistant board and to speak on any issue under the jurisdiction of the physician assistant board.

SECTIONi2.11.iiSubchapter C, Chapter 204, Occupations Code, is amended by adding Section 204.108 to read as follows:

Sec.i204.108.iiRECORDS OF COMPLAINTS. (a) The physician assistant board shall maintain a system to promptly and efficiently act on complaints filed with the physician assistant board. The board shall maintain:

(1)iiinformation about the parties to the complaint and the subject matter of the complaint;

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

(3)iiinformation about the disposition of the complaint.

(b)iiThe physician assistant board shall make information available describing its procedures for complaint investigation and resolution.

(c)iiThe physician assistant board shall periodically notify the parties of the status of the complaint until final disposition of the complaint, unless the notice would jeopardize an investigation.

SECTIONi2.12.iiSubchapter C, Chapter 204, Occupations Code, is amended by adding Section 204.109 to read as follows:

Sec.i204.109.iiUSE OF TECHNOLOGY. Subject to the advice and approval of the medical board, the physician assistant board shall implement a policy requiring the physician assistant board to use appropriate technological solutions to improve the physician assistant board's ability to perform its functions. The policy must ensure that the public is able to interact with the board on the Internet.

SECTIONi2.13.iiSubchapter C, Chapter 204, Occupations Code, is amended by adding Section 204.110 to read as follows:

Sec.i204.110.iiNEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a) Subject to the advice and approval of the medical board, the physician assistant 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 physician assistant 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 physician assistant board's jurisdiction.

(b)iiThe physician assistant 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 physician assistant board shall designate a trained person to:

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

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(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 physician assistant board.

SECTIONi2.14.iiSection 204.152, Occupations Code, is amended to read as follows:

Sec.i204.152.iiISSUANCE OF LICENSE.ii(a) The physician assistant board shall issue a license to an applicant who:

(1)iimeets the eligibility requirements of Section 204.153;

(2)iisubmits an application on a form prescribed by the board;

(3)iipays the required application fee;

(4)iicertifies that the applicant is mentally and physically able to function safely as a physician assistant; and

(5)iisubmits to the board any other information the board considers necessary to evaluate the applicant's qualifications.

(b)iiThe physician assistant board may delegate authority to medical board employees to issue licenses under this chapter to applicants who clearly meet all licensing requirements. If the medical board employees determine that the applicant does not clearly meet all licensing requirements, the application shall be returned to the physician assistant board. A license issued under this subsection does not require formal physician assistant board approval.

SECTIONi2.15.iiSection 204.153, Occupations Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a)iiTo be eligible for a license under this chapter, an applicant must:

(1)iisuccessfully complete an educational program for physician assistants or surgeon assistants accredited by the Committee on Allied Health Education and Accreditation or by that committee's predecessor or successor entities;

(2)iipass the Physician Assistant National Certifying Examination administered by the National Commission on Certification of Physician Assistants;

(3)iihold a certificate issued by the National Commission on Certification of Physician Assistants;

(4)iibe of good moral character; [and]

(5)iimeet any other requirement established by board rule; and

(6)iipass a jurisprudence examination approved by the physician assistant board as provided by Subsection (a-1).

(a-1)iiThe jurisprudence examination shall be conducted on the licensing requirements and other laws, rules, or regulations applicable to the physician assistant profession in this state. The physician assistant board shall establish rules for the jurisprudence examination under Subsection (a)(6) regarding:

(1)iithe development of the examination;

(2)iiapplicable fees;

(3)iiadministration of the examination;

(4)iireexamination procedures;

(5)iigrading procedures; and

(6)iinotice of results.

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SECTIONi2.16.iiSection 204.156, Occupations Code, is amended to read as follows:

Sec.i204.156.iiLICENSE RENEWAL.ii(a) On notification from the physician assistant board, a person who holds a license under this chapter may renew the license by:

(1)iipaying the required renewal fee;

(2)iisubmitting the appropriate form; and

(3)iimeeting any other requirement established by board rule.

(b)iiThe physician assistant board by rule may adopt a system under which licenses expire on various dates during the year.

(c)iiA person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the physician assistant 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.

(d)iiA person whose license has been expired for 90 days or less may renew the license by paying to the physician assistant board a fee that is equal to 1-1/2 times the renewal fee for the license.

(e)iiA person whose license has been expired for more than 90 days but less than one year may renew the license by paying to the physician assistant board a fee equal to two times the renewal fee for the license.

(f)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 the application may obtain a new license without reexamination. The person must pay to the physician assistant board a fee that is equal to two times the normally required renewal fee for the license.

SECTIONi2.17.iiSubchapter D, Chapter 204, Occupations Code, is amended by adding Section 204.1562 to read as follows:

Sec.i204.1562.iiCONTINUING MEDICAL EDUCATION REQUIREMENTS. (a) The physician assistant board by rule shall adopt, monitor, and enforce a reporting program for the continuing medical education of license holders. The physician assistant board shall adopt and administer rules that:

(1)iiestablish the number of hours of continuing medical education the physician assistant board determines appropriate as a prerequisite to the renewal of a license under this chapter;

(2)iirequire at least one-half of the hours of continuing medical education established under Subdivision (1) to be approved by the physician assistant board; and

(3)iiadopt a process to assess a license holder's participation in continuing medical education courses.

(b)iiThe physician assistant board may require that a specified number of continuing medical education hours be completed informally, including through self-study and self-directed education.

SECTIONi2.18.iiSection 204.157, Occupations Code, is amended by amending Subsection (c) and adding Subsection (d) to read as follows:

(c)iiA person whose license is on inactive status under this section may return the person's license to active status by:

(1)iiapplying to the physician assistant board; [and]

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(2)iisatisfying the requirements of Section 204.156; and

(3)iipaying the fee established by the physician assistant board for returning a license to active status.

(d)iiThe physician assistant board by rule shall establish a limit on the length of time a physician assistant's license may remain on inactive status.

SECTIONi2.19.iiSubchapter F, Chapter 204, Occupations Code, is amended by adding Section 204.2511 to read as follows:

Sec.i204.2511.iiCONDUCT OF INVESTIGATION. The physician assistant board shall complete a preliminary investigation of a complaint filed with the physician assistant board not later than the 30th day after the date of receiving the complaint. The physician assistant board shall first determine whether the physician assistant constitutes a continuing threat to the public welfare. On completion of the preliminary investigation, the physician assistant board shall determine whether to officially proceed on the complaint. If the physician assistant board fails to complete the preliminary investigation in the time required by this section, the physician assistant board's official investigation of the complaint is considered to commence on that date.

SECTIONi2.20.iiSection 204.301(a), Occupations Code, is amended to read as follows:

(a)iiExcept as provided by Section 204.305, on a determination that an applicant or license holder committed an act described in Section 204.302, 204.303, or 204.304, the physician assistant board by order shall take any of the following actions:

(1)iideny the person's application for a license [application] or license renewal or revoke the person's license or other authorization;

(2)iirequire the person to submit to the care, counseling, or treatment of a health care practitioner designated by the physician assistant board;

(3)iistay enforcement of an order and place the person on probation;

(4)iirequire the person to complete additional training;

(5)iisuspend, limit, or restrict the person's license, including:

(A)iilimiting the practice of the person to, or excluding from the practice, one or more specified activities of the practice as a physician assistant; or

(B)iistipulating periodic physician assistant board review;

(6)iiassess an administrative penalty against the person under Section 204.351;

(7)iiorder the person to perform public service; or

(8)iiadminister a public reprimand.

SECTIONi2.21.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Section 204.3011 to read as follows:

Sec.i204.3011.iiDELEGATION OF CERTAIN COMPLAINT DISPOSITIONS. (a) The physician assistant board may delegate to a committee of medical board employees the authority to dismiss or enter into an agreed settlement of a complaint that does not relate directly to patient care or that involves only administrative violations. The disposition determined by the committee must be approved by the physician assistant board at a public meeting.

(b)iiA complaint delegated under this section shall be referred for informal proceedings under Section 204.312 if:

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(1)iithe committee of employees determines that the complaint should not be dismissed or settled;

(2)iithe committee is unable to reach an agreed settlement; or

(3)iithe affected physician assistant requests that the complaint be referred for informal proceedings.

SECTIONi2.22.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Section 204.3045 to read as follows:

Sec.i204.3045.iiPHYSICAL OR MENTAL EXAMINATION. (a) The physician assistant board shall adopt guidelines, in conjunction with persons interested in or affected by this section, to enable the physician assistant board to evaluate circumstances in which a physician assistant or applicant may be required to submit to an examination for mental or physical health conditions, alcohol and substance abuse, or professional behavior problems.

(b)iiThe physician assistant board shall refer a physician assistant or applicant with a physical or mental health condition to the most appropriate medical specialist for evaluation. The physician assistant board may not require a physician assistant or applicant to submit to an examination by a physician having a specialty specified by the physician assistant board unless medically indicated. The physician assistant board may not require a physician assistant or applicant to submit to an examination to be conducted an unreasonable distance from the person's home or place of business unless the physician assistant or applicant resides and works in an area in which there are a limited number of physicians able to perform an appropriate examination.

(c)iiThe guidelines adopted under this section do not impair or remove the physician assistant board's power to make an independent licensing decision.

SECTIONi2.23.iiSection 204.305, Occupations Code, is amended to read as follows:

Sec.i204.305.iiREHABILITATION ORDER.ii(a) The physician assistant board, through an agreed order or after a contested proceeding, may impose a rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder based on:

(1)iithe person's intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;

(2)iithe person's intemperate use of drugs or alcohol during the five years preceding the date of the report that could adversely affect the person's ability to safely practice as a physician assistant, if the person:

(A)iireported the use; [and]

(B)iihas not previously been the subject of a substance abuse related order of the board; and

(C)iihas not committed a violation of the standard of care as a result of the intemperate use of drugs or alcohol;

(3)iia judgment by a court that the person is of unsound mind; or

(4)iithe results of a mental or physical examination, or an admission by the person, indicating that the person suffers from a potentially dangerous limitation or an inability to practice as a physician assistant with reasonable skill and safety because of illness or any other physical or mental condition.

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(b)iiThe physician assistant board may not issue an order under this section if, before the individual signs the proposed order, the physician assistant board receives a valid complaint with regard to the individual based on the individual's intemperate use of drugs or alcohol in a manner affecting the standard of care.

(c)iiThe physician assistant board must determine whether an individual has committed a standard of care violation described by Subsection (a)(2) before imposing an order under this section.

(d)iiThe physician assistant board may disclose a rehabilitation order to a local or statewide private association of physician assistants only as provided by Section 204.3075.

SECTIONi2.24.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Section 204.3075 to read as follows:

Sec.i204.3075.iiRESPONSIBILITIES OF PRIVATE ASSOCIATIONS. (a) If a rehabilitation order imposed under Section 204.305 requires a license holder to participate in activities or programs provided by a local or statewide private association of physician assistants, the physician assistant board shall inform the association of the license holder's duties under the order. The information provided under this section must include specific guidance to enable the association to comply with any requirements necessary to assist in the physician assistant's rehabilitation.

(b)iiThe physician assistant board may provide to the association any information that the board determines to be necessary, including a copy of the rehabilitation order. Any information received by the association remains confidential, is not subject to discovery, subpoena, or other means of legal compulsion, and may be disclosed only to the physician assistant board.

SECTIONi2.25.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Section 204.312 to read as follows:

Sec.i204.312.iiINFORMAL PROCEEDINGS.ii(a) The physician assistant board by rule shall adopt procedures governing:

(1)iiinformal disposition of a contested case under Section 2001.056, Government Code; and

(2)iiinformal proceedings held in compliance with Section 2001.054, Government Code.

(b)iiRules adopted under this section must require that:

(1)iian informal meeting in compliance with Section 2001.054, Government Code, be scheduled not later than the 180th day after the date the complaint is filed with the physician assistant board, unless good cause is shown by the physician assistant board for scheduling the informal meeting after that date;

(2)iithe physician assistant board give notice to the license holder of the time and place of the meeting not later than the 30th day before the date the meeting is held;

(3)iithe complainant and the license holder be provided an opportunity to be heard;

(4)iiat least one of the physician assistant board members participating in the informal meeting as a panelist be a member who represents the public;

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(5)iithe physician assistant board's legal counsel or a representative of the attorney general be present to advise the physician assistant board or the medical board's staff; and

(6)iia member of the medical board's staff be at the meeting to present to the physician assistant board's representative the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.

(c)iiAn affected physician assistant is entitled to:

(1)iireply to the staff's presentation; and

(2)iipresent the facts the physician assistant reasonably believes the physician assistant could prove by competent evidence or qualified witnesses at a hearing.

(d)iiAfter ample time is given for the presentations, the physician assistant board representative shall recommend that the investigation be closed or shall attempt to mediate the disputed matters and make a recommendation regarding the disposition of the case in the absence of a hearing under applicable law concerning contested cases.

(e)iiIf the license holder has previously been the subject of disciplinary action by the physician assistant board, the physician assistant board shall schedule the informal meeting as soon as practicable but not later than the deadline prescribed by Subsection (b)(1).

SECTIONi2.26.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Section 204.313 to read as follows:

Sec.i204.313.iiPHYSICIAN ASSISTANT BOARD REPRESENTATION IN INFORMAL PROCEEDINGS. (a) In an informal meeting under Section 204.312, at least two panelists shall be appointed to determine whether an informal disposition is appropriate.

(b)iiNotwithstanding Subsection (a) and Section 204.312(b)(4), an informal proceeding may be conducted by one panelist if the affected physician assistant waives the requirement that at least two panelists conduct the informal proceeding. If the physician assistant waives that requirement, the panelist may be any member of the physician assistant board.

(c)iiThe panel requirements described by Subsections (a) and (b) apply to an informal proceeding conducted by the physician assistant board under Section 204.312, including a proceeding to:

(1)iiconsider a disciplinary case to determine if a violation has occurred; or

(2)iirequest modification or termination of an order.

(d)iiThe panel requirements described by Subsections (a) and (b) do not apply to an informal proceeding conducted by the physician assistant board under Section 204.312 to show compliance with an order of the physician assistant board.

SECTIONi2.27.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Sections 204.314 and 204.3145 to read as follows:

Sec.i204.314.iiROLES AND RESPONSIBILITIES OF PARTICIPANTS IN INFORMAL PROCEEDINGS. (a) A physician assistant board member that serves as a panelist at an informal meeting under Section 204.312 shall make recommendations for the disposition of a complaint or allegation. The member may request the assistance of a medical board employee at any time.

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(b)iiMedical board employees shall present a summary of the allegations against the affected physician assistant and of the facts pertaining to the allegation that the employees reasonably believe may be proven by competent evidence at a formal hearing.

(c)iiA physician assistant board or medical board attorney shall act as counsel to the panel and, notwithstanding Subsection (e), shall be present during the informal meeting and the panel's deliberations to advise the panel on legal issues that arise during the proceeding. The attorney may ask questions of participants in the informal meeting to clarify any statement made by the participant. The attorney shall provide to the panel a historical perspective on comparable cases that have appeared before the physician assistant board or medical board, keep the proceedings focused on the case being discussed, and ensure that the medical board's employees and the affected physician assistant have an opportunity to present information related to the case. During the panel's deliberations, the attorney may be present only to advise the panel on legal issues and to provide information on comparable cases that have appeared before the physician assistant board or medical board.

(d)iiThe panel and medical board employees shall provide an opportunity for the affected physician assistant and the physician assistant's authorized representative to reply to the medical board employees' presentation and to present oral and written statements and facts that the physician assistant and representative reasonably believe could be proven by competent evidence at a formal hearing.

(e)iiAn employee of the medical board who participated in the presentation of the allegation or information gathered in the investigation of the complaint, the affected physician assistant, the physician assistant's authorized representative, the complainant, the witnesses, and members of the public may not be present during the deliberations of the panel. Only the members of the panel and the attorney serving as counsel to the panel may be present during the deliberations.

(f)iiThe panel shall recommend the dismissal of the complaint or allegations or, if the panel determines that the affected physician assistant has violated a statute or physician assistant board rule, the panel may recommend physician assistant board action and terms for an informal settlement of the case.

(g)iiThe panel's recommendations under Subsection (f) must be made in a written order and presented to the affected physician assistant and the physician assistant's authorized representative. The physician assistant may accept the proposed settlement within the time established by the panel at the informal meeting. If the physician assistant rejects the proposed settlement or does not act within the required time, the physician assistant board may proceed with the filing of a formal complaint with the State Office of Administrative Hearings.

Sec.i204.3145.iiLIMIT ON ACCESS TO INVESTIGATION FILES. The physician assistant board shall prohibit or limit access to an investigation file relating to a license holder in an informal proceeding in the manner provided by Section 164.007(c).

SECTIONi2.28.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Section 204.315 to read as follows:

Sec.i204.315.iiSURRENDER OF LICENSE. (a) The physician assistant board may accept the voluntary surrender of a license.

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(b)iiA surrendered license may not be returned to the license holder unless the physician assistant board determines, under physician assistant board rules, that the former holder of the license is competent to resume practice.

(c)iiThe physician assistant board by rule shall establish guidelines for determining the competency of a former license holder to return to practice.

SECTIONi2.29.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Section 204.316 to read as follows:

Sec.i204.316.iiREFUND. (a) Subject to Subsection (b), the physician assistant board may order a license holder to pay a refund 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 Section 204.351.

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

SECTIONi2.30.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Section 204.317 to read as follows:

Sec.i204.317.iiMODIFICATION OF FINDINGS OR RULINGS BY ADMINISTRATIVE LAW JUDGE. The physician assistant board may change a finding of fact or conclusion of law or vacate or modify an order of an administrative law judge only if the physician assistant board makes a determination required by Section 2001.058(e), Government Code.

SECTIONi2.31.iiSubchapter G, Chapter 204, Occupations Code, is amended by adding Section 204.318 to read as follows:

Sec.i204.318.iiEXPERT IMMUNITY. An expert who assists the physician assistant board is immune from suit and judgment and may not be subjected to a suit for damages for any investigation, report, recommendation, statement, evaluation, finding, or other action taken without fraud or malice in the course of assisting the board in a disciplinary proceeding. The attorney general shall represent the expert in any suit resulting from a service provided by the person in good faith to the physician assistant board.

SECTIONi2.32.iiThe heading to Subchapter H, Chapter 204, Occupations Code, is amended to read as follows:

SUBCHAPTER H. PENALTIES AND OTHER
ENFORCEMENT PROVISIONS

SECTIONi2.33.iiSubchapter H, Chapter 204, Occupations Code, is amended by adding Section 204.353 to read as follows:

Sec.i204.353.iiCEASE AND DESIST ORDER. (a) If it appears to the physician assistant board that a person who is not licensed under this chapter is violating this chapter, a rule adopted under this chapter, or another state statute or rule relating to physician assistant practice, the board after notice and opportunity for a hearing may issue a cease and desist order prohibiting the person from engaging in the activity.

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

SECTIONi2.34.iiSection 204.004, Occupations Code, is repealed.

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SECTIONi2.35.ii(a) Not later than January 1, 2006, the Texas State Board of Physician Assistant Examiners shall:

(1)iiadopt the policies required by Sections 204.109 and 204.110, Occupations Code, as added by this article; and

(2)iiadopt the rules required by Chapter 204, Occupations Code, as amended by this article.

(b)iiNot later than March 1, 2006, the Texas State Board of Physician Assistant Examiners shall develop the jurisprudence examination required by Section 204.153, Occupations Code, as amended by this article.

(c)iiThe requirement to pass a jurisprudence examination under Section 204.153, Occupations Code, as amended by this article, applies only to an individual who applies for a license as a physician assistant on or after September 1, 2006.

SECTIONi2.36.ii(a) The changes in law made by Sections 204.053, 204.056, and 204.059, Occupations Code, as amended by this article, regarding the prohibitions on or qualifications of members of the Texas State Board of Physician Assistant Examiners do not affect the entitlement of a member serving on the board immediately before September 1, 2005, to continue to serve and function as a member of the board for the remainder of the member's term. The changes in law made by those sections apply only to a member appointed on or after September 1, 2005.

(b)iiThe changes in law made by this article related to the filing, investigation, or resolution of a complaint under Chapter 204, Occupations Code, as amended by this article, apply only to a complaint filed with the Texas State Board of Physician Assistant Examiners on or after the effective date of this Act. A complaint filed 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.

(c)iiThe changes in law made by this article governing the authority of the Texas State Board of Physician Assistant Examiners to issue, renew, or revoke a license under Chapter 204, Occupations Code, apply only to an application for a license filed with the Texas State Board of Physician Assistant Examiners under Chapter 204, Occupations Code, as amended by this article, on or after the effective date of this Act. A license application filed before the effective date of this Act is governed by the law in effect at the time the application was filed, and the former law is continued in effect for that purpose.

(d)iiThe change in law made by this article with respect to conduct that is grounds for imposition of a disciplinary sanction, including a refund or cease and desist order, applies only to conduct that occurs on or after the effective date of this Act. Conduct that occurs before the effective date of this Act is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

ARTICLE 3. CONTINUATION AND FUNCTIONS OF TEXAS

STATE BOARD OF ACUPUNCTURE EXAMINERS

SECTIONi3.01.iiSections 205.001(6), (7), and (8), Occupations Code, are amended to read as follows:

(6)ii"Executive director" means the executive director of the Texas Medical [State] Board [of Medical Examiners].

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(7)ii"Medical board" means the Texas Medical [State] Board [of Medical Examiners].

(8)ii"Physician" means a person licensed to practice medicine by the Texas Medical [State] Board [of Medical Examiners].

SECTIONi3.02.iiSection 205.051(a), Occupations Code, is amended to read as follows:

(a)iiThe Texas State Board of Acupuncture Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows:

(1)iifour acupuncturist members who have at least five years of experience in the practice of acupuncture in this state and who are not physicians;

(2)iitwo physician members experienced in the practice of acupuncture; and

(3)iithree members of the general public who are not licensed or trained in a health care profession.

SECTIONi3.03.iiSections 205.053(a), (c), and (d), Occupations Code, are amended to read as follows:

(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.

(c)iiA person [who is the spouse of an officer, board member, manager, or paid consultant of a Texas trade association in the field of health care] may not be a member of the acupuncture board and may not be a [an employee of the] medical board employee 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.), if:

(1)iithe person is an officer, employee, or paid consultant of a Texas trade association in the field of health care; or

(2)iithe person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health care [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 step 1, salary group A17, of the position classification salary schedule].

(d)iiA person may not be a member of [serve on] the acupuncture board or act as general counsel to the acupuncture board or the medical 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 medical board or acupuncture board.

SECTIONi3.04.iiSection 205.055, Occupations Code, is amended to read as follows:

Sec.i205.055.iiPRESIDING OFFICER. The governor shall designate an acupuncturist [a] member of the acupuncture board as presiding officer. The presiding officer serves in that capacity at the will of the governor.

SECTIONi3.05.ii Section 205.057, Occupations Code, is amended to read as follows:

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Sec.i205.057.iiTRAINING. (a) A [To be eligible to take office as a member of the acupuncture board, a] person who is appointed to and qualifies for office as a member of the acupuncture board may not vote, deliberate, or be counted as a member in attendance at a meeting of the acupuncture board until the person completes [must complete at least one course of] a training program that complies with this section.

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

(1)iithis chapter [and the acupuncture board];

(2)iithe programs operated by the acupuncture board;

(3)iithe role and functions of the acupuncture board;

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

(5)iithe current budget for the acupuncture board;

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

(7)iithe requirements of laws relating to open meetings, public information, administrative procedure, and conflicts of interest [the:

[(A)iiopen meetings law, Chapter 551, Government Code;

[(B)iiopen records law, Chapter 552, Government Code; and

[(C)iiadministrative procedure law, Chapter 2001, Government Code]; and

(8)ii[the requirements of the conflict of interest laws and other laws relating to public officials; and

[(9)] any applicable ethics policies adopted by the acupuncture [medical] board or the Texas Ethics Commission.

(c)iiA person appointed to the acupuncture 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[, as provided by the General Appropriations Act and as if] the person qualifies for office [were a member of the acupuncture board].

SECTIONi3.06.iiSection 205.101, Occupations Code, is amended to read as follows:

Sec.i205.101.iiGENERAL POWERS AND DUTIES OF ACUPUNCTURE BOARD. (a) Subject to the advice and approval of the medical board, the acupuncture board shall:

(1)iiestablish qualifications for an acupuncturist to practice in this state;

(2)iiestablish minimum education and training requirements necessary for the acupuncture board to recommend that the medical board issue a license to practice acupuncture;

(3)iiadminister an examination that is validated by independent testing professionals for a license to practice acupuncture;

(4)iidevelop requirements for licensure by endorsement of other states;

(5)iiprescribe the application form for a license to practice acupuncture;

(6)iirecommend rules to establish licensing and other fees [make recommendations on applications for licenses to practice acupuncture];

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(7)iiestablish the requirements for a tutorial program for acupuncture students who have completed at least 48 semester hours of college; and

(8)iirecommend additional rules as are necessary to administer and enforce this chapter.

(b)iiThe acupuncture board does not have independent rulemaking authority. A rule adopted by the acupuncture board is subject to medical board approval.

(c)iiThe acupuncture board shall:

(1)iireview and approve or reject each application for the issuance or renewal of a license;

(2)iiissue each license; and

(3)iideny, suspend, or revoke a license or otherwise discipline a license holder.

SECTIONi3.07.iiSubchapter C, Chapter 205, Occupations Code, is amended by adding Section 205.1041 to read as follows:

Sec.i205.1041.iiGUIDELINES FOR EARLY INVOLVEMENT IN RULEMAKING PROCESS. (a) The acupuncture board shall develop guidelines to establish procedures for receiving input during the rulemaking process from individuals and groups that have an interest in matters under the acupuncture board's jurisdiction. The guidelines must provide an opportunity for those individuals and groups to provide input before the acupuncture board submits the rule to the medical board for approval.

(b)iiA rule adopted by the acupuncture board may not be challenged on the grounds that the board did not comply with this section.i If the acupuncture board was unable to solicit a significant amount of input from the public or affected persons early in the rulemaking process, the board shall state in writing the reasons why the board was unable to do so.

SECTIONi3.08.iiSubchapter C, Chapter 205, Occupations Code, is amended by adding Section 205.1045 to read as follows:

Sec.i205.1045.iiRULES ON CONSEQUENCES OF CRIMINAL CONVICTION. The acupuncture board shall adopt rules and guidelines as necessary to comply with Chapter 53, except to the extent the requirements of this chapter are stricter than the requirements of Chapter 53.

SECTIONi3.09.iiSubchapter C, Chapter 205, Occupations Code, is amended by adding Section 205.106 to read as follows:

Sec.i205.106.iiUSE OF TECHNOLOGY. Subject to the advice and approval of the medical board, the acupuncture board shall implement a policy requiring the acupuncture board to use appropriate technological solutions to improve the acupuncture board's ability to perform its functions. The policy must ensure that the public is able to interact with the acupuncture board on the Internet.

SECTIONi3.10.iiSubchapter C, Chapter 205, Occupations Code, is amended by adding Section 205.107 to read as follows:

Sec.i205.107.iiNEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a) Subject to the advice and approval of the medical board, the acupuncture board shall develop and implement a policy to encourage the use of:

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(1)iinegotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of acupuncture 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 acupuncture board's jurisdiction.

(b)iiThe acupuncture board 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 acupuncture 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 acupuncture board.

SECTIONi3.11.iiSubchapter D, Chapter 205, Occupations Code, is amended by adding Section 205.1521 to read as follows:

Sec.i205.1521.iiCONDUCT OF INVESTIGATION. The acupuncture board shall complete a preliminary investigation of a complaint received by the acupuncture board not later than the 30th day after the date of receiving the complaint. The acupuncture board shall first determine whether the acupuncturist constitutes a continuing threat to the public welfare. On completion of the preliminary investigation, the acupuncture board shall determine whether to officially proceed on the complaint. If the acupuncture board fails to complete the preliminary investigation in the time required by this section, the acupuncture board's official investigation of the complaint is considered to commence on that date.

SECTIONi3.12.iiSection 205.201, Occupations Code, is amended to read as follows:

Sec.i205.201.iiLICENSE REQUIRED. Except as provided by Section 205.303, a person may not practice acupuncture in this state unless the person holds a license to practice acupuncture issued by the acupuncture [medical] board under this chapter.

SECTIONi3.13.iiSection 205.202, Occupations Code, is amended to read as follows:

Sec.i205.202.iiISSUANCE OF LICENSE. (a) The [After consulting the] acupuncture board[, the medical board] shall issue a license to practice acupuncture in this state to a person who meets the requirements of this chapter and the rules adopted under this chapter.

(b)iiThe acupuncture board may delegate authority to medical board employees to issue licenses under this chapter to applicants who clearly meet all licensing requirements. If the medical board employees determine that the applicant does not clearly meet all licensing requirements, the application shall be returned to the acupuncture board. A license issued under this subsection does not require formal acupuncture board approval.

SECTIONi3.14.iiSection 205.203, Occupations Code, is amended by amending Subsections (a) and (c) and adding Subsections (c-1) and (f) to read as follows:

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(a)iiAn applicant for a license to practice acupuncture must pass an acupuncture examination and a jurisprudence examination approved by the acupuncture board as provided by this section.

(c)iiThe acupuncture examination shall be conducted on practical and theoretical acupuncture and other subjects required by the acupuncture board.

(c-1)iiThe jurisprudence examination shall be conducted on the licensing requirements and other laws, rules, or regulations applicable to the professional practice of acupuncture in this state.

(f)iiThe acupuncture board shall adopt rules for the jurisprudence examination under Subsection (c-1) regarding:

(1)iithe development of the examination;

(2)iiapplicable fees;

(3)iiadministration of the examination;

(4)iireexamination procedures;

(5)iigrading procedures; and

(6)iinotice of results.

SECTIONi3.15.iiSection 205.206, Occupations Code, is amended by adding Subsections (c) and (d) to read as follows:

(c)iiIn addition to the other requirements of this section, an acupuncture school or degree program is subject to approval by the Texas Higher Education Coordinating Board unless the school or program qualifies for an exemption under Section 61.303, Education Code.

(d)iiIn reviewing an acupuncture school or degree program as required by Subsection (c), the Texas Higher Education Coordinating Board shall seek input from the acupuncture board regarding the standards to be used for assessing whether a school or degree program adequately prepares an individual for the practice of acupuncture.

SECTIONi3.16.iiSection 205.255, Occupations Code, is amended by adding Subsections (a-1) and (c) to read as follows:

(a-1)iiThe acupuncture board shall establish written guidelines for granting continuing education credit that specify:

(1)iiprocedural requirements;

(2)iithe qualifications needed to be considered a preferred provider of continuing education; and

(3)iicourse content requirements.

(c)iiAfter guidelines are established under Subsection (a-1), the acupuncture board shall delegate to medical board employees the authority to approve course applications for courses that clearly meet the guidelines. Medical board employees shall refer any courses that are not clearly within the guidelines to the acupuncture board for review and approval.

SECTIONi3.17.iiSections 205.351(b) and (c), Occupations Code, are amended to read as follows:

(b)iiIf the acupuncture [medical] board proposes to suspend, revoke, or refuse to renew a person's license, the person is entitled to a hearing conducted by the State Office of Administrative Hearings.

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(c)iiA complaint, indictment, or conviction of a violation of law is not necessary for an action under Subsection (a)(11). Proof of the commission of the act while in the practice of acupuncture or under the guise of the practice of acupuncture is sufficient for action by the acupuncture [medical] board.

SECTIONi3.18.iiSection 205.352, Occupations Code, is amended to read as follows:

Sec.i205.352.iiDISCIPLINARY POWERS OF ACUPUNCTURE BOARD. (a) On finding that grounds exist to deny a license or take disciplinary action against a license holder, the acupuncture board by order may:

(1)iideny the person's application for a license, license renewal, or certificate to practice acupuncture or revoke the person's license or certificate to practice acupuncture;

(2)iirequire the person to submit to the care, counseling, or treatment of a health care practitioner designated by the acupuncture board as a condition for the issuance, continuance, or renewal of a license or certificate to practice acupuncture;

(3)iirequire the person to participate in a program of education or counseling prescribed by the acupuncture board;

(4)iisuspend, limit, or restrict the person's license or certificate to practice acupuncture, including limiting the practice of the person to, or excluding from the practice, one or more specified activities of acupuncture or stipulating periodic review by the acupuncture board;

(5)iirequire the person to practice under the direction of an acupuncturist designated by the acupuncture board for a specified period of time;

(6)iiassess an administrative penalty against the person as provided by Subchapter J [Chapter 165];

(7)iirequire the person to perform public service considered appropriate by the acupuncture board; [or]

(8)iistay enforcement of an order and place the person on probation with the acupuncture board retaining the right to vacate the probationary stay and enforce the original order for noncompliance with the terms of probation or impose any other remedial measure or sanction authorized by this section;

(9)iirequire the person to continue or review professional education until the person attains a degree of skill satisfactory to the acupuncture board in those areas that are the basis of the probation under Subdivision (8);

(10)iirequire the person to report regularly to the acupuncture board on matters that are the basis of the probation under Subdivision (8); or

(11)iiadminister a public reprimand.

(b)iiThe acupuncture board may reinstate or reissue a license or remove any disciplinary or corrective measure that the acupuncture board has imposed under this section.

SECTIONi3.19.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.3522 to read as follows:

Sec.i205.3522.iiSURRENDER OF LICENSE. (a) The acupuncture board may accept the voluntary surrender of a license.

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(b)iiA surrendered license may not be returned to the license holder unless the acupuncture board determines, under acupuncture board rules, that the former holder of the license is competent to resume practice.

(c)iiThe acupuncture board shall recommend rules to the medical board for determining the competency of a former license holder to return to practice.

SECTIONi3.20.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.3523 to read as follows:

Sec.i205.3523.iiPHYSICAL OR MENTAL EXAMINATION. (a) The acupuncture board shall adopt guidelines, in conjunction with persons interested in or affected by this section, to enable the board to evaluate circumstances in which an acupuncturist or applicant may be required to submit to an examination for mental or physical health conditions, alcohol and substance abuse, or professional behavior problems.

(b)iiThe acupuncture board shall refer an acupuncturist or applicant with a physical or mental health condition to the most appropriate medical specialist. The acupuncture board may not require an acupuncturist or applicant to submit to an examination by a physician having a specialty specified by the board unless medically indicated. The acupuncture board may not require an acupuncturist or applicant to submit to an examination to be conducted an unreasonable distance from the person's home or place of business unless the acupuncturist or applicant resides and works in an area in which there are a limited number of physicians able to perform an appropriate examination.

(c)iiThe guidelines adopted under this section do not impair or remove the acupuncture board's power to make an independent licensing decision.

SECTIONi3.21.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.3541 to read as follows:

Sec.i205.3541.iiINFORMAL PROCEEDINGS. (a) The acupuncture board by rule shall adopt procedures governing:

(1)iiinformal disposition of a contested case under Section 2001.056, Government Code; and

(2)iiinformal proceedings held in compliance with Section 2001.054, Government Code.

(b)iiRules adopted under this section must require that:

(1)iian informal meeting in compliance with Section 2001.054, Government Code, be scheduled not later than the 180th day after the date the complaint is filed with the acupuncture board, unless good cause is shown by the acupuncture board for scheduling the informal meeting after that date;

(2)iithe acupuncture board give notice to the license holder of the time and place of the meeting not later than the 30th day before the date the meeting is held;

(3)iithe complainant and the license holder be provided an opportunity to be heard;

(4)iiat least one of the acupuncture board members participating in the informal meeting as a panelist be a member who represents the public;

(5)iithe acupuncture board's legal counsel or a representative of the attorney general be present to advise the acupuncture board or the medical board's staff; and

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(6)iian employee of the medical board be at the meeting to present to the acupuncture board's representative the facts the medical board staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.

(c)iiAn affected acupuncturist is entitled, orally or in writing, to:

(1)iireply to the staff's presentation; and

(2)iipresent the facts the acupuncturist reasonably believes the acupuncturist could prove by competent evidence or qualified witnesses at a hearing.

(d)iiAfter ample time is given for the presentations, the acupuncture board panel shall recommend that the investigation be closed or shall attempt to mediate the disputed matters and make a recommendation regarding the disposition of the case in the absence of a hearing under applicable law concerning contested cases.

(e)iiIf the license holder has previously been the subject of disciplinary action by the acupuncture board, the acupuncture board shall schedule the informal meeting as soon as practicable but not later than the deadline prescribed by Subsection (b)(1).

SECTIONi3.22.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.3542 to read as follows:

Sec.i205.3542.iiACUPUNCTURE BOARD REPRESENTATION IN INFORMAL PROCEEDINGS. (a) In an informal proceeding under Section 205.3541, at least two panelists shall be appointed to determine whether an informal disposition is appropriate.

(b)iiNotwithstanding Subsection (a) and Section 205.3541(b)(4), an informal proceeding may be conducted by one panelist if the affected acupuncturist waives the requirement that at least two panelists conduct the informal proceeding. If the acupuncturist waives that requirement, the panelist may be any member of the acupuncture board.

(c)iiThe panel requirements described by Subsection (a) apply to an informal proceeding conducted by the acupuncture board under Section 205.3541, including a proceeding to:

(1)iiconsider a disciplinary case to determine if a violation has occurred; or

(2)iirequest modification or termination of an order.

(d)iiThe panel requirements described by Subsection (a) do not apply to an informal proceeding conducted by the acupuncture board under Section 205.3541 to show compliance with an order of the acupuncture board.

SECTIONi3.23.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.3543 to read as follows:

Sec.i205.3543.iiROLES AND RESPONSIBILITIES OF PARTICIPANTS IN INFORMAL PROCEEDINGS. (a) An acupuncture board member that serves as a panelist at an informal meeting under Section 205.3541 shall make recommendations for the disposition of a complaint or allegation. The member may request the assistance of a medical board employee at any time.

(b)iiMedical board employees shall present a summary of the allegations against the affected acupuncturist and of the facts pertaining to the allegation that the employees reasonably believe may be proven by competent evidence at a formal hearing.

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(c)iiAn acupuncture board or medical board attorney shall act as counsel to the panel and, notwithstanding Subsection (e), shall be present during the informal meeting and the panel's deliberations to advise the panel on legal issues that arise during the proceeding. The attorney may ask questions of participants in the informal meeting to clarify any statement made by the participant. The attorney shall provide to the panel a historical perspective on comparable cases that have appeared before the acupuncture board or medical board, keep the proceedings focused on the case being discussed, and ensure that the medical board's employees and the affected acupuncturist have an opportunity to present information related to the case. During the panel's deliberation, the attorney may be present only to advise the panel on legal issues and to provide information on comparable cases that have appeared before the acupuncture board or medical board.

(d)iiThe panel and medical board employees shall provide an opportunity for the affected acupuncturist and the acupuncturist's authorized representative to reply to the board employees' presentation and to present oral and written statements and facts that the acupuncturist and representative reasonably believe could be proven by competent evidence at a formal hearing.

(e)iiAn employee of the medical board who participated in the presentation of the allegation or information gathered in the investigation of the complaint, the affected acupuncturist, the acupuncturist's authorized representative, the complainant, the witnesses, and members of the public may not be present during the deliberations of the panel. Only the members of the panel and the attorney serving as counsel to the panel may be present during the deliberations.

(f)iiThe panel shall recommend the dismissal of the complaint or allegations or, if the panel determines that the affected acupuncturist has violated a statute or acupuncture board rule, the panel may recommend board action and terms for an informal settlement of the case.

(g)iiThe panel's recommendations under Subsection (f) must be made in a written order and presented to the affected acupuncturist and the acupuncturist's authorized representative. The acupuncturist may accept the proposed settlement within the time established by the panel at the informal meeting. If the acupuncturist rejects the proposed settlement or does not act within the required time, the acupuncture board may proceed with the filing of a formal complaint with the State Office of Administrative Hearings.

SECTIONi3.24.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.3544 to read as follows:

Sec.i205.3544.iiLIMIT ON ACCESS TO INVESTIGATION FILES. The acupuncture board shall prohibit or limit access to an investigation file relating to a license holder in an informal proceeding in the manner provided by Section 164.007(c).

SECTIONi3.25.iiSection 205.356, Occupations Code, is amended to read as follows:

Sec.i205.356.iiREHABILITATION ORDER. (a) The acupuncture board, through an agreed order or after a contested proceeding, may impose a nondisciplinary rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder based on:

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(1)iithe person's intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;

(2)iithe person's intemperate use of drugs or alcohol during the five years preceding the date of the report that could adversely affect the person's ability to safely practice as an acupuncturist, if the person:

(A)iireported the use; [and]

(B)iihas not previously been the subject of a substance abuse related order of the acupuncture board; and

(C)iidid not violate the standard of care as a result of the impairment;

(3)iia judgment by a court that the person is of unsound mind; or

(4)iithe results of a mental or physical examination, or an admission by the person, indicating that the person suffers from a potentially dangerous limitation or an inability to practice as an acupuncturist with reasonable skill and safety by reason of illness or as a result of any physical or mental condition.

(b)iiThe acupuncture board may not issue an order under this section if, before the individual signs the proposed order, the board receives a valid complaint with regard to the individual based on the individual's intemperate use of drugs or alcohol in a manner affecting the standard of care.

(c)iiThe acupuncture board must determine whether an individual has committed a standard of care violation described by Subsection (a)(2) before imposing an order under this section.

(d)iiThe acupuncture board may disclose a rehabilitation order to a local or statewide private acupuncture association only as provided by Section 205.3562.

SECTIONi3.26.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Sections 205.3561 and 205.3562 to read as follows:

Sec.i205.3561.iiEXPERT IMMUNITY. An expert who assists the acupuncture board is immune from suit and judgment and may not be subjected to a suit for damages for any investigation, report, recommendation, statement, evaluation, finding, or other action taken without fraud or malice in the course of assisting the board in a disciplinary proceeding. The attorney general shall represent the expert in any suit resulting from a service provided by the expert in good faith to the acupuncture board.

Sec.i205.3562.iiRESPONSIBILITIES OF PRIVATE ASSOCIATIONS. (a) If a rehabilitation order imposed under Section 205.356 requires a license holder to participate in activities or programs provided by a local or statewide private acupuncture association, the acupuncture board shall inform the association of the license holder's duties under the order. The information provided under this section must include specific guidance to enable the association to comply with any requirements necessary to assist in the acupuncturist's rehabilitation.

(b)iiThe acupuncture board may provide to the association any information that the board determines to be necessary, including a copy of the rehabilitation order. Any information received by the association remains confidential, is not subject to discovery, subpoena, or other means of legal compulsion, and may be disclosed only to the acupuncture board.

SECTIONi3.27.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.360 to read as follows:

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Sec.i205.360.iiDELEGATION OF CERTAIN COMPLAINT DISPOSITIONS. (a) The acupuncture board may delegate to a committee of medical board employees the authority to dismiss or enter into an agreed settlement of a complaint that does not relate directly to patient care or that involves only administrative violations. The disposition determined by the committee must be approved by the acupuncture board at a public meeting.

(b)iiA complaint delegated under this section shall be referred for informal proceedings under Section 205.3541 if:

(1)iithe committee of employees determines that the complaint should not be dismissed or settled;

(2)iithe committee is unable to reach an agreed settlement; or

(3)iithe affected acupuncturist requests that the complaint be referred for informal proceedings.

SECTIONi3.28.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.361 to read as follows:

Sec.i205.361.iiTEMPORARY SUSPENSION. (a) The presiding officer of the acupuncture board, with that board's approval, shall appoint a three-member disciplinary panel consisting of acupuncture board members to determine whether a person's license to practice as an acupuncturist should be temporarily suspended.

(b)iiIf the disciplinary panel determines from the information presented to the panel that a person licensed to practice as an acupuncturist would, by the person's continuation in practice, constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend the license of that person.

(c)iiA license may be suspended under this section without notice or hearing on the complaint if:

(1)iiinstitution of proceedings for a hearing before the acupuncture board is initiated simultaneously with the temporary suspension; and

(2)iia hearing is held under Chapter 2001, Government Code, and this chapter as soon as possible.

(d)iiNotwithstanding Chapter 551, Government Code, the disciplinary panel may hold a meeting by telephone conference call if immediate action is required and convening of the panel at one location is inconvenient for any member of the disciplinary panel.

SECTIONi3.29.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.362 to read as follows:

Sec.i205.362.iiCEASE AND DESIST ORDER. (a) If it appears to the acupuncture board that a person who is not licensed under this chapter is violating this chapter, a rule adopted under this chapter, or another state statute or rule relating to the practice of acupuncture, the board, after notice and opportunity for a hearing, may issue a cease and desist order prohibiting the person from engaging in the activity.

(b)iiA violation of an order under this section constitutes grounds for imposing an administrative penalty under Section 205.352.

SECTIONi3.30.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.363 to read as follows:

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Sec.i205.363.iiREFUND. (a) Subject to Subsection (b), the acupuncture board may order a license holder to pay a refund 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 subchapter.

(b)iiThe amount of a refund ordered under Subsection (a) may not exceed the amount the consumer paid to the license holder for a service regulated by this chapter. The acupuncture board may not require payment of other damages or estimate harm in a refund order.

SECTIONi3.31.iiSubchapter H, Chapter 205, Occupations Code, is amended by adding Section 205.364 to read as follows:

Sec.i205.364.iiMODIFICATION OF FINDINGS OR RULINGS BY ADMINISTRATIVE LAW JUDGE. The acupuncture board may change a finding of fact or conclusion of law or vacate or modify an order of an administrative law judge only if the acupuncture board makes a determination required by Section 2001.058(e), Government Code.

SECTIONi3.32.iiSections 205.402(a) and (d), Occupations Code, are amended to read as follows:

(a)iiThe acupuncture [medical] board, the attorney general, or a district or county attorney may bring a civil action to compel compliance with this chapter or to enforce a rule adopted under this chapter.

(d)iiThe attorney general, at the request of the acupuncture [medical] board or on the attorney general's own initiative, may bring a civil action to collect a civil penalty.

SECTIONi3.33. The heading to Subchapter I, Chapter 205, Occupations Code, is amended to read as follows:

SUBCHAPTER I. CRIMINAL PENALTIES AND OTHER

ENFORCEMENT PROVISIONS

SECTIONi3.34.iiChapter 205, Occupations Code, is amended by adding Subchapter J to read as follows:

SUBCHAPTER J. ADMINISTRATIVE PENALTIES

Sec.i205.451.iiIMPOSITION OF ADMINISTRATIVE PENALTY. The acupuncture board by order may impose an administrative penalty against a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter.

Sec.i205.452.iiPROCEDURE. (a) The acupuncture board by rule shall prescribe the procedure by which it may impose an administrative penalty.

(b)iiA proceeding under this subchapter is subject to Chapter 2001, Government Code.

Sec.i205.453.iiAMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $5,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

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

(1)iithe seriousness of the violation, including:

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

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

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

(3)iithe history of previous violations;

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

(5)iiefforts to correct the violation; and

(6)iiany other matter that justice may require.

Sec.i205.454.iiNOTICE OF VIOLATION AND PENALTY. (a) If the acupuncture board by order determines that a violation has occurred and imposes an administrative penalty, the acupuncture board shall notify the affected person of the board's order.

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

Sec.i205.455.iiOPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the acupuncture board's order imposing the administrative penalty is final, the person shall:

(1)iipay the penalty;

(2)iipay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or

(3)iiwithout paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.

(b)iiWithin the 30-day period, a person who acts under Subsection (a)(3) may:

(1)iistay enforcement of the penalty by:

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

(B)iigiving to the court a supersedeas bond approved by the court for the amount of the penalty and that is effective until all judicial review of the acupuncture board's order is final; or

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

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

(B)iigiving a copy of the affidavit to the presiding officer of the acupuncture board by certified mail.

(c)iiIf the presiding officer of the acupuncture board receives a copy of an affidavit under Subsection (b)(2), the presiding officer may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received.

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

Sec.i205.456.iiCOLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the presiding officer of the acupuncture board may refer the matter to the attorney general for collection of the penalty.

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Sec.i205.457.iiDETERMINATION BY COURT. (a) If on appeal the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.

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

Sec.i205.458.iiREMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:

(1)iiorder that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or

(2)iiorder the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.

(b)iiThe interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest is paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.

SECTIONi3.35.iiSections 205.002 and 205.353, Occupations Code, are repealed.

SECTIONi3.36.ii(a) Not later than January 1, 2006, the Texas State Board of Acupuncture Examiners shall:

(1)iiadopt the policies required by Sections 205.106 and 205.107, Occupations Code, as added by this article; and

(2)iiadopt the rules required by Chapter 205, Occupations Code, as amended by this article.

(b)iiNot later than March 1, 2006, the Texas State Board of Acupuncture Examiners shall develop the jurisprudence examination required by Section 205.203, Occupations Code, as amended by this article.

(c)iiThe requirement to pass a jurisprudence examination under Section 205.203, Occupations Code, as amended by this article, applies only to an individual who applies for a license as an acupuncturist on or after September 1, 2006.

SECTIONi3.37.ii(a) The changes in law made by Sections 205.053 and 205.057, Occupations Code, as amended by this article, regarding the prohibitions on or qualifications of members of the Texas State Board of Acupuncture Examiners do not affect the entitlement of a member serving on the board immediately before September 1, 2005, to continue to serve and function as a member of the board for the remainder of the member's term. The changes in law made by those sections apply only to a member appointed on or after September 1, 2005.

(b)iiThe changes in law made by this article related to the filing, investigation, or resolution of a complaint under Chapter 205, Occupations Code, as amended by this article, apply only to a complaint filed with the Texas State Board of Acupuncture Examiners on or after the effective date of this Act. A complaint filed 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.

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(c)iiThe changes in law made by this article governing the authority of the Texas State Board of Acupuncture Examiners to issue, renew, or revoke a license under Chapter 205, Occupations Code, apply only to an application for a license filed with the Texas State Board of Acupuncture Examiners under Chapter 205, Occupations Code, as amended by this article, on or after the effective date of this Act. A license application filed before the effective date of this Act is governed by the law in effect at the time the application was filed, and the former law is continued in effect for that purpose.

(d)iiThe change in law made by this article with respect to conduct that is grounds for imposition of a disciplinary sanction, including a refund, temporary license suspension, or cease and desist order, applies only to conduct that occurs on or after the effective date of this Act. Conduct that occurs before the effective date of this Act is governed by the law in effect on the date the conduct occurred, and the former law is continued in effect for that purpose.

ARTICLE 4. REGULATION OF SURGICAL ASSISTANTS

SECTIONi4.01.iiSection 206.001(5), Occupations Code, is amended to read as follows:

(5)ii"Medical board" means the Texas [State Board of] Medical Board [Examiners].

SECTIONi4.02.iiSubchapter D, Chapter 206, Occupations Code, is amended by adding Section 206.1575 to read as follows:

Sec.i206.1575.iiCONDUCT OF INVESTIGATION. The medical board shall complete a preliminary investigation of a complaint not later than the 30th day after the date of receiving the complaint. The medical board shall first determine whether the surgical assistant constitutes a continuing threat to the public welfare. On completion of the preliminary investigation, the medical board shall determine whether to officially proceed on the complaint. If the medical board fails to complete the preliminary investigation in the time required by this section, the medical board's official investigation is considered to commence on that date.

SECTIONi4.03.iiSection 206.209, Occupations Code, is amended to read as follows:

Sec.i206.209.iiISSUANCE AND RENEWAL OF LICENSE. (a) The medical board shall issue a surgical assistant license in this state to a person who meets the requirements of this chapter and the rules adopted under this chapter.

(b)iiThe medical board may delegate authority to board employees to issue licenses under this chapter to applicants who clearly meet all licensing requirements. If the medical board employees determine that the applicant does not clearly meet all licensing requirements, the application shall be returned to the medical board. A license issued under this subsection does not require formal medical board approval.

SECTIONi4.04.iiSection 206.305, Occupations Code, is amended to read as follows:

Sec.i206.305.iiREHABILITATION ORDER. (a) The medical board, through an agreed order or after a contested case proceeding, may impose a rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder based on:

(1)iithe person's intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;

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(2)iithe person's intemperate use of drugs or alcohol during the five years preceding the date of the report that could adversely affect the person's ability to safely practice as a surgical assistant, if the person:

(A)iireported the use; [and]

(B)iihas not previously been the subject of a substance abuse related order of the medical board; and

(C)iihas not committed a violation of the standard of care as a result of the intemperate use of drugs or alcohol;

(3)iia judgment by a court that the person is of unsound mind; or

(4)iithe results of a mental or physical examination, or an admission by the person, indicating that the person suffers from a potentially dangerous limitation or an inability to practice as a surgical assistant with reasonable skill and safety because of illness or any other physical or mental condition.

(b)iiThe medical board may not issue an order under this section if, before the individual signs the proposed order, the board receives a valid complaint with regard to the individual based on the individual's intemperate use of drugs or alcohol in a manner affecting the standard of care.

(c)iiThe medical board must determine whether an individual has committed a standard of care violation described by Subsection (a)(2) before imposing an order under this section.

(d)iiThe medical board may disclose a rehabilitation order to a local or statewide private medical or surgical assistant association only as provided by Section 206.3075.

SECTIONi4.05.iiSubchapter G, Chapter 206, Occupations Code, is amended by adding Section 206.3075 to read as follows:

Sec.i206.3075.iiRESPONSIBILITIES OF PRIVATE ASSOCIATIONS. (a) If a rehabilitation order imposed under Section 206.305 requires a license holder to participate in activities or programs provided by a local or statewide private medical or surgical assistant association, the medical board shall inform the association of the license holder's duties under the order. The information provided under this section must include specific guidance to enable the association to comply with any requirements necessary to assist in the surgical assistant's rehabilitation.

(b)iiThe medical board may provide to the association any information that the board determines to be necessary, including a copy of the rehabilitation order. Any information received by the association remains confidential, is not subject to discovery, subpoena, or other means of legal compulsion, and may be disclosed only to the medical board.

SECTIONi4.06.iiSubchapter G, Chapter 206, Occupations Code, is amended by adding Sections 206.313-206.315 to read as follows:

Sec.i206.313.iiINFORMAL PROCEEDINGS. (a) The medical board by rule shall adopt procedures under this chapter governing:

(1)iiinformal disposition of a contested case under Section 2001.056, Government Code; and

(2)iiinformal proceedings held in compliance with Section 2001.054, Government Code.

(b)iiRules adopted under this section must require that:

3346 79th Legislature — Regular Session 78th Day

(1)iian informal meeting in compliance with Section 2001.054, Government Code, be scheduled not later than the 180th day after the date the medical board's official investigation of the complaint is commenced, unless good cause is shown by the board for scheduling the informal meeting after that date;

(2)iithe medical board give notice to the license holder of the time and place of the meeting not later than the 30th day before the date the meeting is held;

(3)iithe complainant and the license holder be provided an opportunity to be heard;

(4)iiat least one of the medical board members or district review committee members participating in the informal meeting as a panelist be a member who represents the public;

(5)iithe medical board's legal counsel or a representative of the attorney general be present to advise the medical board or the board's staff; and

(6)iia member of the medical board's staff be at the meeting to present to the panel the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.

(c)iiAn affected surgical assistant is entitled, orally or in writing, to:

(1)iireply to the staff's presentation; and

(2)iipresent the facts the surgical assistant reasonably believes the surgical assistant could prove by competent evidence or qualified witnesses at a hearing.

(d)iiAfter ample time is given for the presentations, the medical board panel shall recommend that the investigation be closed or shall attempt to mediate the disputed matters and make a recommendation regarding the disposition of the case in the absence of a hearing under applicable law concerning contested cases.

(e)iiIf the license holder has previously been the subject of disciplinary action by the medical board, the board shall schedule the informal meeting as soon as practicable but not later than the deadline prescribed by Subsection (b)(1).

Sec.i206.314.iiROLES AND RESPONSIBILITIES OF PARTICIPANTS IN INFORMAL PROCEEDINGS. (a) A medical board or district review committee member that serves as a panelist at an informal meeting under Section 206.313 shall make recommendations for the disposition of a complaint or allegation. The member may request the assistance of a medical board employee at any time.

(b)iiMedical board employees shall present a summary of the allegations against the affected surgical assistant and of the facts pertaining to the allegation that the employees reasonably believe may be proven by competent evidence at a formal hearing.

(c)iiA medical board attorney shall act as counsel to the panel and, notwithstanding Subsection (e), shall be present during the informal meeting and the panel's deliberations to advise the panel on legal issues that arise during the proceeding. The attorney may ask questions of participants in the informal meeting to clarify any statement made by the participant. The attorney shall provide to the panel a historical perspective on comparable cases that have appeared before the medical board, keep the proceedings focused on the case being discussed, and ensure that the medical board's employees and the affected surgical assistant have an opportunity to

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(d)iiThe panel and medical board employees shall provide an opportunity for the affected surgical assistant and the surgical assistant's authorized representative to reply to the board employees' presentation and to present oral and written statements and facts that the surgical assistant and representative reasonably believe could be proven by competent evidence at a formal hearing.

(e)iiAn employee of the medical board who participated in the presentation of the allegation or information gathered in the investigation of the complaint, the affected surgical assistant, the surgical assistant's authorized representative, the complainant, the witnesses, and members of the public may not be present during the deliberations of the panel. Only the members of the panel and the medical board attorney serving as counsel to the panel may be present during the deliberations.

(f)iiThe panel shall recommend the dismissal of the complaint or allegations or, if the panel determines that the affected surgical assistant has violated a statute or medical board rule, the panel may recommend board action and terms for an informal settlement of the case.

(g)iiThe panel's recommendations under Subsection (f) must be made in a written order and presented to the affected surgical assistant and the surgical assistant's authorized representative. The surgical assistant may accept the proposed settlement within the time established by the panel at the informal meeting. If the surgical assistant rejects the proposed settlement or does not act within the required time, the medical board may proceed with the filing of a formal complaint with the State Office of Administrative Hearings.

Sec.i206.315.iiMEDICAL BOARD REPRESENTATION IN INFORMAL PROCEEDINGS. (a) In an informal proceeding under Section 206.313, at least two panelists shall be appointed to determine whether an informal disposition is appropriate.

(b)iiThe medical board may request members of a committee under Chapter 163 to participate in an informal meeting under Section 206.313.

(c)iiNotwithstanding Subsection (a) and Section 206.313(b)(4), an informal proceeding may be conducted by one panelist if the affected surgical assistant waives the requirement that at least two panelists conduct the informal proceeding. If the surgical assistant waives that requirement, the panelist may be either a physician or a member who represents the public.

(d)iiThe panel requirements described by Subsection (a) do not apply to an informal proceeding conducted by the medical board under Section 206.313 to show compliance with an order of the board.

SECTIONi4.07.iiThe changes in law made by this article related to the filing, investigation, or disposition of a complaint under Chapter 206, Occupations Code, as amended by this article, apply only to a complaint filed with the Texas Medical Board on or after the effective date of this Act. A complaint filed 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.

3348 79th Legislature — Regular Session 78th Day

ARTICLE 5. EFFECTIVE DATE

SECTION 5.01.iiThis Act takes effect September 1, 2005.

Floor Amendment No. 1

Amend CSSB 419 (House committee printing) as follows:

(1) On page 26, line 6, after the period, add the following:

"In the event that a decision of the board or the State Office of Administrative Hearings is appealed to district court or other court, the confidentiality protections relating to the medical peer review committee documents shall continue."

(2) On page 26, beginning at line 9, strike ", if the records are available to the board through a means other than a medical peer review committee's records." and insert "or records made or maintained in the regular course of business, if the records are not considered confidential under this chapter or any other law and are otherwise available to the board."

(3) On page 35, line 15, after the period, add the following:

"When admitted into evidence, this information shall be admitted under seal to protect the confidentiality of the documents. In the event that a decision of the board or the State Office of Administrative Hearings is appealed to a district court or other court, the confidentiality protections relating to the medical peer review committee documents shall continue."

Floor Amendment No. 2

Amend CSSB 419 by adding the following appropriately numbered section to Article 1 of the bill and renumbering the sections of that article accordingly:

SECTION __. Section 164.052 (a), Occupations Code, is amended to read as follows:

(a) A physician or an applicant for a license to practice medicine commits a prohibited practice if that person:

(1) submits to the board a false or misleading statement, document, or certificate in an application for a license;

(2) presents to the board a license, certificate, or diploma that was illegally or fraudulently obtained;

(3) commits fraud or deception in taking or passing an examination;

(4) uses alcohol or drugs in an intemperate manner that, in the board's opinion, could endanger a patient's life;

(5) commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public;

(6) uses an advertising statement that is false, misleading, or deceptive;

(7) advertises professional superiority or the performance of professional service in a superior manner if that advertising is not readily subject to verification;

(8) purchases, sells, barters, or uses, or offers to purchase, sell, barter, or use, a medical degree, license, certificate, or diploma, or a transcript of a license, certificate, or diploma in or incident to an application to the board for a license to practice medicine;

(9) alters, with fraudulent intent, a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma;

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(10) uses a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma that has been:

(A) fraudulently purchased or issued;

(B) counterfeited; or

(C) materially altered;

(11) impersonates or acts as proxy for another person in an examination required by this subtitle for a medical license;

(12) engages in conduct that subverts or attempts to subvert an examination process required by this subtitle for a medical license;

(13) impersonates a physician or permits another to use the person's license or certificate to practice medicine in this state;

(14) directly or indirectly employs a person whose license to practice medicine has been suspended, canceled, or revoked;

(15) associates in the practice of medicine with a person:

(A) whose license to practice medicine has been suspended, canceled, or revoked; or

(B) who has been convicted of the unlawful practice of medicine in this state or elsewhere;

(16) performs or procures a criminal abortion, aids or abets in the procuring of a criminal abortion, attempts to perform or procure a criminal abortion, or attempts to aid or abet the performance or procurement of a criminal abortion; [or]

(17) directly or indirectly aids or abets the practice of medicine by a person, partnership, association, or corporation that is not licensed to practice medicine by the board; or

(18) performs an abortion on a woman who is pregnant with a viable unborn child during the third trimester of the pregnancy when the abortion is not necessary to prevent the death of the woman.

Floor Amendment No. 3

Amend Floor Amendment No. 2 by Hartnett to CSSB 419 in proposed Section 164.052(a)(18), Occupations Code, between "woman" and the period, by inserting "or when the viable unborn child does not have a severe, irreversible brain impairment".

Floor Amendment No. 8

Amend Floor Amendment No. 2 by Hartnett to CSSB 419, in proposed Section 164.052(a)(18), Occupations Code, between "impairment" and the period, by inserting "or when the woman is diagnosed with a significant likelihood of suffering imminent severe, irreversible brain damage or paralysis".

Floor Amendment No. 11

Amend CSSB 419 by adding the following appropriately numbered section to Article 1 of the bill and renumbering the sections of that article accordingly:

SECTION . Section 164.052(a), Occupations Code, is amended to read as follows:

(a) A physician or an applicant for a license to practice medicine commits a prohibited practice if that person:

3350 79th Legislature — Regular Session 78th Day

(1) submits to the board a false or misleading statement, document, or certificate in an application for a license;

(2) presents to the board a license, certificate, or diploma that was illegally or fraudulently obtained;

(3) commits fraud or deception in taking or passing an examination;

(4) uses alcohol or drugs in an intemperate manner that, in the board's opinion, could endanger a patient's life;

(5) commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public;

(6) uses an advertising statement that is false, misleading, or deceptive;

(7) advertises professional superiority or the performance of professional service in a superior manner if that advertising is not readily subject to verification;

(8) purchases, sells, barters, or uses, or offers to purchase, sell, barter, or use, a medical degree, license, certificate, or diploma, or a transcript of a license, certificate, or diploma in or incident to an application to the board for a license to practice medicine;

(9) alters, with fraudulent intent, a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma;

(10) uses a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma that has been:

(A) fraudulently purchased or issued;

(B) counterfeited; or

(C) materially altered;

(11) impersonates or acts as a proxy for another person in an examination required by this subtitle for a medical license;

(12) engages in conduct that subverts or attempts to subvert an examination process required by this subtitle for a medical license;

(13) impersonates a physician or permits another to use the person's license or certificate to practice medicine in this state;

(14) directly or indirectly employs a person whose license to practice medicine has been suspended, canceled, or revoked;

(15) associates in the practice of medicine with a person:

(A) whose license to practice medicine has been suspended, canceled, or revoked; or

(B) who has been convicted of the unlawful practice of medicine in this state or elsewhere;

(16) performs or procures a criminal abortion, aids or abets in the procuring of a criminal abortion, attempts to perform or procure a criminal abortion, or attempts to aid or abet the performance or procurement of a criminal abortion; [or]

(17) directly or indirectly aids or abets the practice of medicine by a person, partnership, association, or corporation that is not licensed to practice medicine by the board; or

(18) performs an abortion on an unemancipated minor without the written consent of the child's parent, managing conservator, or legal guardian or without a court order permitting the abortion.

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Floor Amendment No. 13

Amend Floor Amendment No. 11 by Hartnett for CSSB 419 as follows:

(1) On page 3, line 9, between "order" and "permitting" insert ", as provided by Sections 33.003 or 33.004, Family Code,"

(2) On page 3, line 10, after the word " abortion" and before the period insert ", unless the physician concludes that on the basis of the physician's good faith clinical judgment, a condition exists that complicates the medical condition of the pregnant minor and necessitates the immediate abortion of her pregnancy to avert her death or to avoid a serious risk of substantial impairment of a major bodily function and that there is insufficient time to obtain the consent of the child's parent, managing conservator, or legal guardian".

Floor Amendment No. 14

Amend Floor Amendment No. 11 by Hartnett to CSSB 419, in proposed 164.052(a)(18), Occupations Code, by striking "permitting" and substituting "authorizing the minor to consent to".

Floor Amendment No. 1 on Third Reading

Amend CSSB 419 (House committee printing) on third reading as follows:

(1)iiIn Section 1.11 of the bill, in added Section 153.0015(a), Occupations Code (page 8, lines 18 and 19), strike "Texas State Board of Physician Assistant Examiners" and substitute "Texas Physician Assistant Board".

(2)iiIn Article 2 of the bill (page 43, lines 12–15), strike SECTION 2.01 and substitute the following:

SECTIONi2.01.iiSection 204.002, Occupations Code, is amended to read as follows:

Sec.i204.002.iiDEFINITIONS.iiIn this chapter:

(1)ii"Medical board" means the Texas [State Board of] Medical Board [Examiners].

(2)ii"Physician assistant board" means the Texas [State Board of] Physician Assistant Board [Examiners].

(3)iiIn Section 2.35(a) of the bill (page 68, lines 2 and 3), strike "Texas State Board of Physician Assistant Examiners" and substitute "Texas Physician Assistant Board".

(4)iiIn Section 2.35(b) of the bill (page 68, lines 8 and 9), strike "Texas State Board of Physician Assistant Examiners" and substitute "Texas Physician Assistant Board".

(5)iiIn Section 2.36(a) of the bill (page 68, line 19), strike "Texas State Board of Physician Assistant Examiners" and substitute "Texas Physician Assistant Board".

(6)iiIn Section 2.36(b) of the bill (page 69, lines 1 and 2), strike "Texas State Board of Physician Assistant Examiners" and substitute "Texas Physician Assistant Board".

(7)iiIn Section 2.36(c) of the bill (page 69, line 7), strike "authority of the Texas State Board of Physician Assistant Examiners" and substitute "authority of the Texas Physician Assistant Board".

3352 79th Legislature — Regular Session 78th Day

(8)iiIn Section 2.36(c) of the bill (page 69, lines 9 and 10) strike "filed with the Texas State Board of Physician Assistant Examiners" and substitute "filed with the Texas Physician Assistant Board".

(9)iiAdd the following appropriately numbered SECTIONS to Article 2 of the bill and renumber subsequent SECTIONS of the bill accordingly:

SECTIONi__.iiThe heading to Subchapter B, Chapter 204, Occupations Code, is amended to read as follows:

SUBCHAPTER B. TEXAS [STATE BOARD OF] PHYSICIAN

ASSISTANT BOARD [EXAMINERS]

SECTIONi__.iiSection 204.051, Occupations Code, is amended to read as follows:

Sec.i204.051.iiTEXAS [STATE BOARD OF] PHYSICIAN ASSISTANT BOARD [EXAMINERS].ii(a) The Texas [State Board of] Physician Assistant Board [Examiners] is an advisory board to the Texas State Board of Medical Examiners.

(b)iiA reference in any other law to the former Texas State Board of Physician Assistant Examiners means the Texas Physician Assistant Board.

Floor Amendment No. 2 on Third Reading

Amend CSSB 419 on third reading by striking Subdivision (18), Subsection (a), Section 164.052, Occupations Code, as added to the bill by Amendment No. 2 by Hartnett and amended by Amendment No. 3 by Hartnett and Amendment No. 8 by Raymond, and substituting:

(18) performs an abortion on a woman who is pregnant with a viable unborn child during the third trimester of the pregnancy unless:

(A) the abortion is necessary to prevent the death of the woman;

(B) the viable unborn child has a severe, irreversible brain impairment; or

(C) the woman is diagnosed with a significant likelihood of suffering imminent severe, irreversible brain damage or paralysis.

Floor Amendment No. 3 on Third Reading

Amend Floor Amendment No. 2 by Raymond to CSSB 419 on third reading in proposed Subdivision (18), Subsection (a), Section 164.052, Occupations Code (page 1, line 15), between "or" and "paralysis" by inserting "imminent severe, irreversible".

Floor Amendment No. 5 on Third Reading

Amend CSSB 419 on third reading as follows:

(1) Strike the proposed introductory language to amended Section 164.052, Occupations Code, and substitute the following:

SECTION __. Section 164.052, Occupations Code, is amended by amending Subsection (a) and adding Subsections (a-1) and (a-2) to read as follows:

(2) In amended Section 164.052(a)(17), Occupations Code, as amended by Amendment No. 11 by Hartnett, strike "board; or" and substitute "board;".

(3) In proposed Section 164.052(a)(18), Occupations Code, as added by Amendment No. 11 by Hartnett, strike the period and substitute the following:

; or

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(19) performs an abortion on a pregnant unemancipated minor, unless the physician performing the abortion or the physician's agent obtains:

(A) from the minor's parent who appears in person at the facility where the abortion is to be performed, if the minor does not have a managing conservator or guardian, a copy of the parent's proof of identification and a completed, signed form with the following statement:

"I certify that I, _________ (insert parent's name), am the parent of _________ (insert minor daughter's name) and have consented to _________ (insert physician's name) performing an abortion on ________ (insert minor daughter's name). I understand that any person who intentionally, knowingly, recklessly, or with criminal negligence makes a fraudulent statement in this regard commits an offense punishable by law.

________ Signature of parent

________ Date of signature"; or

(B) from the minor's court-appointed managing conservator or guardian who appears in person at the facility where the abortion is to be performed a copy of the conservator's or guardian's proof of identification and a completed, signed form with the following statement:

"I certify that I, _________ (insert conservator's or guardian's name), am the conservator or guardian of _________ (insert minor daughter's name) and have consented to _________ (insert physician's name) performing an abortion on ________ (insert minor's name). I understand that any person who intentionally, knowingly, recklessly, or with criminal negligence makes a fraudulent statement in this regard commits an offense punishable by law.

________ Signature of conservator or guardian

________ Date of signature.

(a-1) A person who is unable to produce satisfactory proof of the identity, the relationship, or any other fact required under Subsection (a)(18), or a pregnant female whose ability to obtain an abortion is affected by Subsection (a)(18), may file a petition or motion with any county court at law, court having probate jurisdiction, or district court, including a family district court, of the county in which the person resides or of the county in which the abortion is to be performed. The judge of the court, after conducting a hearing in accordance with the required procedures and determining by a preponderance of the evidence the truth of the requisite fact or facts, shall issue an order authorizing the physician to perform the abortion.

(a-2) An order authorizing a physician to perform an abortion issued as provided by Subsection (a-1) may not be appealed. A person whose petition or motion submitted under Subsection (a-1) is denied may appeal to the court of appeals having jurisdiction over civil matters in the county in which the application was filed.

Floor Amendment No. 6 on Third Reading

Amend Floor Amendment No. 5 by Miller to CSSB 419 on third reading by striking the text of the amendment and substituting the following:

Amend CSSB 419 on third reading by adding the following appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS of the bill accordingly:

3354 79th Legislature — Regular Session 78th Day

SECTION __. Section 164.052, Occupations Code, is amended by adding Subsection (c) to read as follows:

(c) The board shall adopt the forms necessary for physicians to obtain the consent required for an abortion to the performed on an unemancipated minor under Subsection (a). The form executed to obtain consent or any other required documentation must be retained by the physician until the later of the fifth anniversary of the date of the minor's majority or the seventh anniversary of the date the physician received or created the documentation for the record.

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.

The Presiding Officer asked if there were any motions to instruct the conference committee on SBi419 before appointment.

There were no motions offered.

The Presiding Officer announced the appointment of the following conferees on the part of the Senate:iiSenators Nelson, Chair; Harris, Eltife, Deuell, and Zaffirini.

CONCLUSION OF MORNING CALL

The Presiding Officer, Senator Carona in Chair, at 12:20 p.m. announced the conclusion of morning call.

HOUSE BILL 2339 ON SECOND READING

On motion of Senator Jackson and by unanimous consent, the regular order of business was suspended to take up for consideration HB 2339 at this time on its second reading:

HB 2339, Relating to the provision of mail ballots to overseas voters and to conforming adjustments to related dates, deadlines, and procedures.

The bill was read second time.

Senator Jackson offered the following committee amendment to the bill:

Committee Amendment No. 1

Amend HB 2339 as follows:

On page 11, lines 15-25, strike Subsection (a) and substitute the following Subsection (a):

(a)iiExcept as provided by Subsection (f), a [A] candidate's application for a place on a special election ballot must be filed not later than:

(1)ii5 p.m. of the 67th day before election day, if election day is on or after the 70th day after the date the election is ordered;

(2) 5 p.m. of the 31st day before election day, if election day is on or after the 36th day and before the 70th day after the date the election is ordered; or

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(3) [(2)] 5 p.m. of a day fixed by the authority ordering the election, which day must be not earlier than the fifth day after the date the election is ordered and not later than the 20th day before election day, if election day is before the 36th day after the date the election is ordered.

The amendment to HB 2339 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Committee Amendment No. 1.

Senator Jackson offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 2339 (Senate committee printing) by adding the following appropriately numbered sections to the bill and renumbering the remaining sections appropriately:

SECTIONi1.__.iiChapter 62, Election Code, is amended by adding Section 62.016 to read as follows:

Sec.i62.016.iiNOTICE OF ACCEPTABLE IDENTIFICATION OUTSIDE POLLING PLACES. The presiding judge shall post in a prominent place on the outside of each polling location notice that a provisional ballot will be provided to a person who executes the appropriate affidavit and a list of the acceptable forms of photographic and nonphotographic identification. The notice and list must be printed:

(1)iiin English, Spanish, and any other language appropriate to the precinct in which the polling place is located; and

(2)iiusing a font that is at least 24 point.

SECTIONi1.__.iiSection 63.001, Election Code, is amended by amending Subsections (b), (c), (d), and (f) and adding Subsection (g) to read as follows:

(b)iiOn offering to vote, a voter must present to an election officer at the polling place the voter's voter registration certificate and either:

(1)iione form of identification listed in Section 63.0101(a); or

(2)iitwo different forms of identification listed in Section 63.0101(b) [to an election officer at the polling place].

(c)iiOn presentation of the documentation required by Subsection (b) [a registration certificate], an election officer shall determine whether the voter's name on the registration certificate is on the list of registered voters for the precinct.

(d)iiIf the voter's name is on the precinct list of registered voters and the voter's identity can be verified from the proof presented, the voter shall be accepted for voting.

(f)iiAfter determining whether to accept a voter, an election officer shall return the voter's documentation [registration certificate] to the voter.

(g)iiIf the requirements for identification prescribed by Subsection (b)(1) or (2) are not met, the voter shall be accepted for provisional voting only under Section 63.011.

SECTIONi1.__.iiChapter 63, Election Code, is amended by adding Section 63.0012 to read as follows:

Sec.i63.0012.iiUSE OF ADDRESS ON IDENTIFICATION. (a) This section applies only to a voter who:

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(1)iipresents a registration certificate;

(2)iiis on the list of registered voters for the precinct; and

(3)iiconfirms the address on the list of registered voters is current under Section 63.0011.

(b)iiIn verifying the identity of a voter described by Subsection (a) under Section 63.001, an election officer may not consider whether the voter's address on a form described by Section 63.001(b)(1) or (2) matches the voter's address on the registration certificate or the list of registered voters.

SECTIONi1.__.iiSection 63.006(a), Election Code, is amended to read as follows:

(a)iiA voter who, when offering to vote, presents a voter registration certificate indicating that the voter is currently registered in the precinct in which the voter is offering to vote, but whose name is not on the precinct list of registered voters, shall be accepted for voting if the voter's identity can be verified from the proof presented.

SECTIONi1.__.iiSection 63.007(a), Election Code, is amended to read as follows:

(a)iiA voter who, when offering to vote, presents a voter registration certificate indicating that the voter is currently registered in a different precinct from the one in which the voter is offering to vote, and whose name is not on the precinct list of registered voters, shall be accepted for voting if the voter's identity can be verified from the proof presented and the voter executes an affidavit stating that the voter:

(1)iiis a resident of the precinct in which the voter is offering to vote or is otherwise entitled by law to vote in that precinct;

(2)iiwas a resident of the precinct in which the voter is offering to vote at the time that information on the voter's residence address was last provided to the voter registrar;

(3)iidid not deliberately provide false information to secure registration in a precinct in which the voter does not reside; and

(4)iiis voting only once in the election.

SECTIONi1.__.iiSection 63.008(a), Election Code, is amended to read as follows:

(a)iiA voter who does not present a voter registration certificate when offering to vote, but whose name is on the list of registered voters for the precinct in which the voter is offering to vote, shall be accepted for voting if the voter executes an affidavit stating that the voter does not have the voter's voter registration certificate in the voter's possession at the polling place at the time of offering to vote and the voter's identity can be verified from the proof presented [voter presents proof of identification in a form described by Section 63.0101].

SECTIONi1.__.iiSection 63.0101, Election Code, is amended to read as follows:

Sec.i63.0101.iiDOCUMENTATION OF PROOF OF IDENTIFICATION. (a) The following documentation is an acceptable form [as proof] of photo identification under this chapter:

Wednesday, May 25, 2005 SENATE JOURNAL 3357

(1)iia driver's license or personal identification card issued to the person by the Department of Public Safety or the equivalent agency of another state that has not expired or that expired no earlier than two years before the date of presentation [or a similar document issued to the person by an agency of another state, regardless of whether the license or card has expired];

(2)iia United States military identification card that contains the person's photograph [form of identification containing the person's photograph that establishes the person's identity];

(3)iia valid employee identification card that contains the person's photograph and is issued by an employer of the person in the ordinary course of the employer's business [birth certificate or other document confirming birth that is admissible in a court of law and establishes the person's identity];

(4)iia United States citizenship certificate [papers] issued to the person that contains the person's photograph;

(5)iia United States passport issued to the person;

(6)iia student identification card issued by a public or private institution of higher education that contains the person's photograph [official mail addressed to the person by name from a governmental entity];

(7)iia license to carry a concealed handgun issued to the person by the Department of Public Safety;

(8)iian identification card issued by a state agency of this state that contains the person's photograph; or

(9)iian identification card that contains the person's photograph and is issued by a county elections administrator or a county clerk.

(b)iiThe following documentation is acceptable as proof of identification under this chapter:

(1)iia copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter;

(2)iiofficial mail addressed to the person by name from a governmental entity;

(3)iia certified copy of a birth certificate or other document confirming birth that is admissible in a court of law and establishes the person's identity;

(4)iiUnited States citizenship papers issued to the person;

(5)iian original or certified copy of the person's marriage license or divorce decree;

(6)iicourt records of the person's adoption, name change, or sex change;

(7)iian identification card issued to the person by a governmental entity of this state or the United States for the purpose of obtaining public benefits, including veteran's benefits, Medicaid, or Medicare;

(8)iia temporary driving permit issued to the person by the Department of Public Safety;

(9)iia pilot's license issued to the person by the Federal Aviation Administration or another authorized agency of the United States;

(10)iia library card that contains the person's name issued to the person by a public library located in this state; or

3358 79th Legislature — Regular Session 78th Day

(11)iia hunting or fishing license issued to a person by the Parks and Wildlife Department [or

[(8)iiany other form of identification prescribed by the secretary of state].

(c)iiThe commissioners court of a county may authorize the county elections administrator or the county clerk, as applicable, to issue photo identification cards that may be used as proof of a voter's identification under Subsection (a).

SECTIONi1.__.iiSections 63.011(a) and (b), Election Code, are amended to read as follows:

(a)iiA person to whom Section 63.001(g), 63.008(b), or 63.009(a) applies may cast a provisional ballot if the person executes an affidavit stating that the person:

(1)iiis a registered voter in the precinct in which the person seeks to vote; and

(2)iiis eligible to vote in the election.

(b)iiA form for the affidavit shall be printed on an envelope in which the provisional ballot voted by the person may be placed and must include a space for entering the identification number of the provisional ballot voted by the person and a space for an election officer to indicate whether the person presented proof of identification as required by Section 63.001(b)(1) or (2). The affidavit form may include space for disclosure of any necessary information to enable the person to register to vote under Chapter 13. The secretary of state shall prescribe the form of the affidavit under this section.

SECTIONi1.__.iiSection 65.054(b), Election Code, is amended to read as follows:

(b)iiA provisional ballot may be accepted only if:

(1)iithe board determines that, from the information in the affidavit or contained in public records, the person is eligible to vote in the election; and

(2)iithe voter presents proof of identification as required by Section 63.001(b)(1) or (2):

(A)iiat the time the ballot was cast; or

(B)iiin the period prescribed under Section 65.0541.

SECTIONi1.__.iiSubchapter B, Chapter 65, Election Code, is amended by adding Section 65.0541 to read as follows:

Sec.i65.0541.iiPRESENTATION OF IDENTIFICATION FOR CERTAIN PROVISIONAL BALLOTS. (a) A voter who is accepted for provisional voting under Section 63.011 because the voter does not present proof of identification as required by Section 63.001(b)(1) or (2) may submit proof of identification to the voter registrar by personal delivery or by mail for examination by the early voting ballot board not later than the fifth day after the date of the election.

(b)iiThe early voting ballot board shall accept a provisional ballot under Section 65.054 if the voter:

(1)iipresents proof of identification in the manner required by this section; and

(2)iiis otherwise eligible to vote in the election.

(c)iiThe office of the voter registrar shall be open on a Saturday that falls within the five-day period described by Subsection (a) for a voter to present identification as provided under this section.

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(d)iiThe secretary of state shall prescribe procedures as necessary to implement this section.

SECTIONi1.__.iiSection 521.422, Transportation Code, is amended by amending Subsection (a) and adding Subsection (d) to read as follows:

(a)iiExcept as provided by Subsection (d), the [The] fee for a personal identification certificate is:

(1)ii$15 for a person under 60 years of age;

(2)ii$5 for a person 60 years of age or older; and

(3)ii$20 for a person subject to the registration requirements under Chapter 62, Code of Criminal Procedure.

(d)iiThe department may not collect a fee for a personal identification certificate issued to a person who executes an affidavit stating that the person is financially unable to pay the required fee and:

(1)iiwho is a registered voter in this state and presents a valid voter registration certificate; or

(2)iiwho is eligible for registration under Section 13.001, Election Code, and submits a registration application to the department.

SECTIONi1.__.iiThe changes in law made by this Act by amending Chapters 62, 63, and 65, Election Code, take effect only if:

(1)iithe United States District Court for the District of Columbia issues a declaratory judgment under 42 U.S.C. Section 1973c that those changes do not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color or in contravention of the guarantees set forth in 42 U.S.C. Section 1973b(f)(2); or

(2)iithe secretary of state submits the changes to the United States Attorney General under 42 U.S.C. Section 1973c and the attorney general does not interpose an objection within the time provided by that section.

Senator Jackson withdrew Floor Amendment No.i1.

Senator Jackson offered the following amendment to the bill:

Floor Amendment No. 2

Amend HB 2339 by inserting the following appropriately numbered sections of the bill and by renumbering subsequent sections of the bill accordingly:

SECTIONi__.iiChapter 140, Local Government Code, is amended by adding Section 140.008 to read as follows:

Sec.i140.008.iiEXPENDITURE OF FUNDS BY SCHOOL DISTRICT TO ADVERTISE ELECTION MEASURE. (a) In this section, "measure" has the meaning assigned by Section 1.005, Election Code.

(b)iiA school district may not spend funds on advertising, other promotional materials, or educational materials related to an election or measure for the period beginning on the 60th day before the date of an election and ending on election day.

(c)iiThis section does not apply to the expenditure of funds for notice or other publications required by the Election Code, another statute, or in response to an open records request under Chapter 552, Government Code.

The amendment was read.

3360 79th Legislature — Regular Session 78th Day

On motion of Senator Jackson, further consideration of HB 2339 was postponed to a time certain of 3:00 p.m. today.

Question — Shall Floor Amendment No. 2 to HB 2339 be adopted?

SENATE BILL 1830 WITH HOUSE AMENDMENT

Senator Zaffirini called SBi1830 from the President's table for consideration of the House amendment to the bill.

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

Floor Amendment No. 1

Amend SB 1830 (House committee printing) by adding the following appropriately numbered section:

SECTIONi__.iiSubchapter B, Chapter 531, Government Code, is amended by adding Sections 531.078 through 531.082 to read as follows:

Sec.i531.078.iiQUALITY ASSURANCE FEES ON CERTAIN WAIVER PROGRAM SERVICES. (a) In this section, "gross receipts" means money received as compensation for services under an intermediate care facilities for the mentally retarded waiver program such as a home and community services waiver or a community living assistance and support services waiver. The term does not include a charitable contribution, revenues received for services or goods other than waivers, or any money received from consumers or their families as reimbursement for services or goods not normally covered by the waivers.

(b)iiThe executive commissioner by rule shall modify the quality assurance fee program under Subchapter H, Chapter 252, Health and Safety Code, by providing for a quality assurance fee program that imposes a quality assurance fee on persons providing services under a home and community services waiver or a community living assistance and support services waiver.

(c)iiThe executive commissioner shall establish the fee at an amount that will produce annual revenues of not more than six percent of the gross receipts of a person from services the person provides under the waiver.

(d)iiThe executive commissioner shall adopt rules governing:

(1)iithe reporting required to compute and collect the fee and the manner and times of collecting the fee; and

(2)iithe administration of the fee, including the imposition of penalties for a violation of the rules.

(e)iiFees collected under this section shall be deposited in the waiver program quality assurance fee account.

Sec.i531.079.iiWAIVER PROGRAM QUALITY ASSURANCE FEE ACCOUNT. (a) The waiver program quality assurance fee account is a dedicated account in the general revenue fund. The account is exempt from the application of Section 403.095. Interest earned on money in the account shall be credited to the account.

(b)iiThe account consists of fees collected under Section 531.078 and interest earned on money in the account.

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(c)iiSubject to legislative appropriation and state and federal law, money in the account may be appropriated only to the Department of Aging and Disability Services to increase reimbursement rates paid under the home and community services waiver program or the community living assistance and support services waiver program or to offset allowable expenses under the state Medicaid program.

Sec.i531.080.iiREIMBURSEMENT OF WAIVER PROGRAMS. Subject to legislative appropriation and state and federal law, the Department of Aging and Disability Services shall use money from the waiver program quality assurance fee account, together with any federal money available to match money from the account, to increase reimbursement rates paid under the home and community services waiver program or the community living assistance and support services waiver program.

Sec.i531.081.iiINVALIDITY; FEDERAL FUNDS. If any portion of Sections 531.078-531.080 is held invalid by a final order of a court that is not subject to appeal, or if the commission determines that the imposition of the quality assurance fee and the expenditure of the money collected as provided by those sections will not entitle this state to receive additional federal money under the Medicaid program, the commission shall:

(1)iistop collection of the quality assurance fee; and

(2)iinot later than the 30th day after the date the collection of the quality assurance fee is stopped, return any money collected under Section 531.078, but not spent under Section 531.080, to the persons who paid the fees in proportion to the total amount paid by those persons.

Sec.i531.082.iiEXPIRATION OF QUALITY ASSURANCE FEE ON WAIVER PROGRAMS. If Subchapter H, Chapter 252, Health and Safety Code, expires, this section and Sections 531.078-531.081 expire on the same date.

The amendment was read.

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

The motion prevailed without objection.

The Presiding Officer asked if there were any motions to instruct the conference committee on SBi1830 before appointment.

There were no motions offered.

The Presiding Officer announced the appointment of the following conferees on the part of the Senate:iiSenators Zaffirini, Chair; Averitt, Duncan, Ogden, and Whitmire.

HOUSE BILL 3423 ON SECOND READING

On motion of Senator Armbrister and by unanimous consent, the regular order of business was suspended to take up for consideration HBi3423 at this time on its second reading:

HB 3423, Relating to the creation of the Victoria County Groundwater Conservation District; providing authority to impose a tax and issue bonds; abolishing the Crossroads Groundwater Conservation District.

3362 79th Legislature — Regular Session 78th Day

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

All Members are deemed to have voted "Yea" on the passage to third reading.

HOUSE BILL 3423 ON THIRD READING

Senator Armbrister moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi3423 be placed on its third reading and final passage.

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

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

SENATE CONCURRENT RESOLUTION 41

The Presiding Officer laid before the Senate the following resolution:

WHEREAS, SBi1708 has passed the Texas Senate and the Texas House of Representatives and is now in the office of the governor; and

WHEREAS, Further consideration of the bill by the senate and the house of representatives is necessary; now, therefore, be it

RESOLVED, by the 79th Legislature of the State of Texas, That the governor be hereby requested to return Senate Bill No. 1708 to the senate for further consideration; and, be it further

RESOLVED, That the action of the president of the senate and the speaker of the house of representatives in signing Senate Bill No. 1708 be declared null and void and that the two presiding officers be authorized to remove their signatures from the enrolled bill.

STAPLES

SCR 41 was read.

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

All Members are deemed to have voted "Yea" on the adoption of the resolution.

HOUSE BILL 580 ON SECOND READING

On motion of Senator Gallegos and by unanimous consent, the regular order of business was suspended to take up for consideration HB 580 at this time on its second reading:

HB 580, Relating to the authority of a county to provide hazardous materials services.

The bill was read second time.

Senator Armbrister offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 580 as follows: on line 1-64, amend Section 353.003 by inserting the following new subsection:

Wednesday, May 25, 2005 SENATE JOURNAL 3363

(d)iiIn relation to any hazardous material for which the county may provide hazardous material services under this chapter, a person who caused, suffered, allowed, or permitted the hazardous material to be leaked, spilled, released or abandoned is liable for the reasonable costs, damages, or expenses that are or have been incurred by the county or a third party for the management, handling, storage, and disposal of the material.

The amendment to HB 580 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 1.

Senator Gallegos offered the following amendment to the bill:

Floor Amendment No. 2

Amend HB 580, on page 2, line 2-32, strike SECTION 2 in its entirety, and substitute the following:

"SECTION 2.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, 2005."

The amendment to HB 580 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 2.

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

HB 580 as amended was passed to third reading by a viva voce vote.

All Members are deemed to have voted "Yea" on the passage to third reading.

HOUSE BILL 580 ON THIRD READING

Senator Gallegos moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi580 be placed on its third reading and final passage.

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

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

SENATE BILL 11 WITH HOUSE AMENDMENTS

Senator Staples called SBi11 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.

3364 79th Legislature — Regular Session 78th Day

Committee Amendment No. 1

Amend SB 11 (on page 1, lines 10 and 11 of engrossed version), by striking "as recommended by the United States Department of Homeland Security" and replacing with "as defined by the Texas School Safety Center in conjunction with the state office of homeland security".

Committee Amendment No. 2

Amend SB 11 in SECTION 1 of the bill as follows:

(1)iiIn added Section 37.108(a)(3), Education Code (engrossed version, page 1, line 18), strike "and".

(2)iiIn added Section 37.108(a), Education Code (engrossed version, page 1, line 20), strike the period and substitute:

; and

(5)iia system for providing immediate notification through a variety of communication methods to the parents or guardians of affected district students in the event of an emergency.

Floor Amendment No. 1 on Third Reading

Amend SB 11 on third reading as follows:

(1) In the recital to SECTION 1 of the bill, strike "Section 37.108" and substitute "Section 37.108 and 37.1085".

(2) In SECTION 1 of the bill, at the end of added Section 37.108, Education Code, insert the following:

Sec. 37.1085. ADDITIONAL TRAINING. (a) A school district that employs a school district peace officer under Section 37.081, may require each officer to attend a security training program for school resource officers and school district peace officers.

(b) The training program must use a curriculum that incorporates learning objectives approved by the commissioner and developed jointly by the Bill Blackwood Law Enforcement Management Institute of Texas at Sam Houston State University and the Texas School Safety Center at Texas State University regarding:

(1) multihazard emergency operations plans;

(2) security audits;

(3) safety training programs; and

(4) discipline management practices or behavior management practices that are consistent with Section 37.0021, Education Code, and the procedures adopted under that section.

(c) The training program curriculum must provide information on the areas related to school security described in Subsection (b) and should distinguish between appropriate safety and discipline management practices or behavior management practices to be applied by a school resource officer or school district peace officer who has been authorized to carry a weapon under Section 37.081, Education Code, and those practices to be applied by a school resource officer or school district peace officer who is not authorized to carry a weapon.

(3) Add the following appropriately numbered SECTION to the bill and renumber subsequent SECTIONS accordingly:

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SECTION . The Bill Blackwood Law Enforcement Management Institute of Texas and the Texas School Safety Center shall develop the curriculum for the training program required under Section 37.1085, Education Code, as added by this Act, not later than January 1, 2006.

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.

The Presiding Officer asked if there were any motions to instruct the conference committee on SBi11 before appointment.

There were no motions offered.

The Presiding Officer announced the appointment of the following conferees on the part of the Senate:iiSenators Staples, Chair; Shapiro, Shapleigh, Lindsay, and Ellis.

(Senator Brimer in Chair)

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2525 ON SECOND READING

On motion of Senator Lindsay and by unanimous consent, the regular order of business was suspended to take up for consideration CSHB 2525 at this time on its second reading:

CSHB 2525, Relating to contracts by governmental entities for construction projects and related professional services and to public performance and payment bonds.

The bill was read second time.

Senator Lindsay offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 2525 as follows:

(1)iIn SECTION 2, Sec. 2264.427, add Subsection (b) to read as follows:

(b)iiThe injunctive relief provided by this section does not apply to enforcement of a contract entered into by a state agency that has a formal administrative appeals process regarding the award of the contract.

The amendment to CSHB 2525 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 1.

Senator Carona offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 2525 by adding the following appropriately numbered section to the bill and renumbering the remaining sections of the bill accordingly:

3366 79th Legislature — Regular Session 78th Day

SECTIONi__.iiSubchapter C, Chapter 452, Transportation Code, is amended by adding Section 452.1095 to read as follows:

Sec. 452.1095.iiEXEMPTION FROM OTHER CONTRACTING LAW FOR CERTAIN AUTHORITIES. Chapter 2264, Government Code, does not apply to an authority consisting of one subregion governed by a subregional board created under Subchapter O.

The amendment to CSHB 2525 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 2.

Senator West offered the following amendment to the bill:

Floor Amendment No. 3

Amend CSHB 2525 by adding a new section appropriately numbered __ to read as follows:

Sectioni __.iiSubchapter D, Chapter 11, Education Code, is amended by adding Section 11.168 to read as follows:

Section 11.168.iiUSE OF DISTRICT RESOURCES PROHIBITED FOR CERTAIN PURPOSES. The board of trustees of a school district may not enter into an agreement authorizing the use of school district employees, property, or resources for the provision of materials or labor for the design, construction, or renovation of improvements to real property not owned or leased by the district.

The amendment to CSHB 2525 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 3.

Senator West offered the following amendment to the bill:

Floor Amendment No. 4

Amend CSHB 2525 (Senate committee printing) by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill appropriately:

SECTIONi__.iiSection 44.0311(a), Education Code, is amended to read as follows:

(a)iiThis subchapter does not apply [applies] to junior college districts.

SECTIONi__.iiSubchapter A, Chapter 130, Education Code, is amended by adding Section 130.0103 to read as follows:

Sec.i130.0103.iiPOLICY AND REPORT REGARDING HISTORICALLY UNDERUTILIZED BUSINESSES. (a) In this section, "historically underutilized business" has the meaning assigned by Section 2161.001, Government Code.

(b)iiThis section applies only to a junior college district located wholly or partially in a county with a population of one million or more.

(c)iiEach junior college district shall adopt a policy stating its commitment to developing, maintaining, and enhancing participation by historically underutilized businesses in all phases of the district's procurement processes in order to support, to

Wednesday, May 25, 2005 SENATE JOURNAL 3367

(d)iiAnnually, each junior college district shall publish a report of the total number of contracts awarded by the district in the preceding fiscal year and the number of those contracts awarded to historically underutilized businesses. The report must be published in a newspaper of general circulation in the county in which the majority of the territory or population of the district is located not later than the 60th day following the last day of the district's fiscal year.

SECTIONi__.iiChapter 130, Education Code, is amended by adding Subchapters K and L to read as follows:

SUBCHAPTER K. PURCHASING CONTRACTS OTHER THAN

CONSTRUCTION CONTRACTS

Sec.i130.251.iiDEFINITIONS. In this subchapter:

(1)ii"Board of trustees" means the governing board of a district.

(2)ii"District" means a public junior college district.

(3)ii"Purchase of goods":

(A)iiincludes:

(i)iicontracting for the rights to use rather than own goods; and

(ii)iipurchase of the materials and labor incidental to the delivery and installation of personal property; and

(B)iidoes not include the purchase or lease of real property.

(4)ii"Services" does not include:

(A)iiconstruction services; or

(B)iiprofessional services, including services of an architect, engineer, auditor, accountant, attorney, or fiscal agent.

Sec.i130.2511.iiUSE OF TERMS "BIDDER," "VENDOR," AND "BID." (a) The terms "bidder" and "vendor" may be used interchangeably to identify an entity that responds to a request for competitive bids or proposals, or for offers or qualifications.

(b)iiThe term "bid" may be used to refer to a competitive bid or proposal, or to an offer, or to a statement of qualifications.

Sec.i130.252.iiCONFLICT WITH OTHER LAW. To the extent of any conflict, this subchapter prevails over any other law relating to the purchase of goods and services by a district other than a law relating to contracting with historically underutilized businesses.

Sec.i130.253.iiPURCHASE METHODS. (a) Except as otherwise provided by this subchapter, all contracts for the purchase by a district of goods or services valued at $35,000 or more in the aggregate for each 12-month fiscal year shall be made by the method, of the following methods, that provides the best value for the district:

(1)iicompetitive sealed bids;

(2)iicompetitive sealed proposals;

(3)iithe reverse auction procedure defined by Section 2155.062(d), Government Code; or

(4)iithe formation of a political subdivision corporation under Section 304.001, Local Government Code.

3368 79th Legislature — Regular Session 78th Day

(b)iiOnly one of the methods listed in Subsection (a) may be used for any individual contract. The district must determine which method provides the best value for the district before publishing the notice required by Section 130.258.

(c)iiIf the district uses the competitive sealed proposal method, the district shall:

(1)iireveal when the proposals are opened the names of the companies submitting proposals; and

(2)iikeep the contents of the proposals confidential until the district concludes negotiations and awards a contract.

(d)iiFor professional services not covered by Subchapter A, Chapter 2254, Government Code, including services rendered by a financial consultant, an auctioneer, a personnel services contractor, a travel agent, a technology or educational consultant, or a business engaged to teach approved courses, a district may contract for the professional services in the manner provided by Section 2254.003, Government Code, in lieu of the methods provided by Subsection (a).

(e)iiA district may purchase an item or service that is available from only one source without complying with Subsection (a), including:

(1)iian item for which competition is precluded because of the existence of a patent, copyright, secret process, or monopoly;

(2)iia film, recording, periodical, manuscript, or book or computer software;

(3)iia utility service, including gas or water;

(4)iia captive replacement part or component for equipment;

(5)iia product needed to match or work with like products; and

(6)iitechnical or specialized services, including advertising, audio/video production, and the repair and maintenance of specialized equipment.

(f)iiWithout complying with Subsection (a), a district may purchase advertising services, meeting and catering services, and travel services, including airfare, ground transportation, and lodging. The district shall exercise reasonable and prudent care to determine whether a contract with a company will provide the best value to the district. The district shall document the process for selecting the provider of the services and shall maintain a list of companies contacted and the basis for selecting the provider. Any company that has provided written notice to the district that it is interested in being considered as a supplier of services covered by this subsection shall be given the opportunity to make an offer to provide the services. After rating and ranking the offers, the district shall attempt to negotiate a contract with the highest ranked company. If a contract cannot be negotiated with the highest ranked company, the next highest ranked company shall be contacted.

(g)iiWithout complying with Subsection (a), a district may purchase an item or service under:

(1)iian interlocal contract under Chapter 791, Government Code;

(2)iia catalog purchase as provided by Subchapter B, Chapter 2157, Government Code; or

(3)iia contract established by the Texas Building and Procurement Commission or Department of Information Resources, including a contract for the purchase of travel services, telephone service, computers, and computer-related equipment and software.

Wednesday, May 25, 2005 SENATE JOURNAL 3369

(h)iiIf the Texas Building and Procurement Commission, an institution of higher education as defined by Section 61.003, or a political subdivision of this state has entered into a contract with a company to provide goods or services other than construction services, then during the term of the contract a district may purchase the goods or services directly from the company if the company agrees to sell the goods or services to the district in accordance with the terms and conditions of the original contract at the same cost or at a cost lower than that stated in the original contract. The purchase satisfies the requirements of this subchapter if the original contract was awarded in compliance with the statutory requirements applicable to the governmental entity that awarded the contract and the district's purchase order references the original contract and identifies the parties to the contract. If the Texas Building and Procurement Commission is a party to the original contract, the district may use the contract under this section only if the district is a member of the Texas Building and Procurement Commission Cooperative Purchasing Program.

Sec.i130.254.iiPURCHASE OF INSURANCE. (a) A district may acquire insurance using a two-step request for proposals process. In the first step, the district shall determine which insurance companies are represented by agents interested in providing insurance for the district. If more than one agent indicates a desire to represent the same company, the agent with the longest and most substantial relationship with the insurance company shall be authorized to submit a proposal for the designated insurance company. In the second step, the district shall notify the interested agents as to which insurance companies the agents represent and request the agents to submit proposals for providing insurance.

(b)iiIn notifying the interested agents to begin the second step, the district is not required to comply with Section 130.258. However, the district in the request for proposals shall give the interested agents notice of the date, time, and place where proposals are to be submitted. Proposals received after the date and time stated in the request for proposals may not be considered.

Sec.i130.255.iiMULTIYEAR CONTRACTS. A multiyear contract must include a provision that permits termination at the end of each fiscal year.

Sec.i130.256.iiEVALUATION AND AWARD OF CONTRACT. (a) Except as otherwise provided by this subchapter, a district shall award a contract to the lowest responsible bidder offering the best value to the district according to the selection criteria established by the district. The district shall publish in the request for bids, proposals, or qualifications the criteria the district will use to evaluate the offers and the relative weights given to the criteria that are known at the time of the publication.

(b)iiIn determining the lowest responsible bidder, the district may consider:

(1)iithe purchase price;

(2)iithe reputation of the bidder and of the bidder's goods or services;

(3)iithe quality of the bidder's goods or services;

(4)iithe extent to which the offered goods or services meet the district's needs;

(5)iithe bidder's past relationship with the district;

(6)iithe total long-term cost to the district to acquire the vendor's goods or services;

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(7)iithe extent to which the offers comply with the requirements of the request for bids, proposals, or qualifications;

(8)iithe sufficiency of the bidder's financial resources and ability to perform the contract or provide theiservice;

(9)iithe bidder's ability to provide future maintenance, repair parts, and service;

(10)iithe installation cost;

(11)iithe cost of operation and maintenance;

(12)iiany other relevant factor specifically listed in the request for bids or proposals;

(13)iithe impact on the ability of the district to comply with laws and rules relating to historically underutilized businesses;

(14)iithe bidder's compliance with a requirement for attendance at a mandatory site visit or pre-bid conference; and

(15)iithe bidder's safety record, if:

(A)iithe district has adopted a written definition and criteria for accurately determining the safety record of a bidder;

(B)iithe district has given notice to prospective bidders in the request for bids that the safety record of a bidder may be considered in determining the responsibility of the bidder; and

(C)iithe district's determinations are not arbitrary and capricious.

(c)iiA district may reject all bids or proposals or parts of bids or proposals if the rejection serves the district's interest.

(d)iiThe district shall provide all bidders with the opportunity to bid on the same items or services on equal terms and have bids judged according to the same standards as those set forth in the request for bids.

(e)iiThe district shall receive bids under this subchapter in a fair and confidential manner.

(f)iiBids may be opened only by the district at a public meeting in a district-owned or district-controlled facility. At the time the district opens a competitive bid, the district shall read aloud the name of the bidder and the total bid amount if a member of the public is present and the bid is of a type that should contain a bid amount. At least two district employees or trustees must be present at the bid opening. When opening proposals or qualifications, the district shall read aloud only the name of the respondents and may not disclose the contents of a proposal on opening the proposal or during negotiations with competing bidders.

(g)iiA bid that has been opened may not be changed for the purpose of correcting an error in the bid price. If there is a discrepancy between the total price and the unit price of a bid, the unit price prevails. If there is a discrepancy between the written price and the numerical price of a bid, the written price prevails.

(h)iiThis subchapter does not change the common law right of a bidder to withdraw a bid due to a material mistake in the bid.

(i)iiThe district shall document the basis of its selection and shall make its evaluations public not later than the seventh day after the date the contract is awarded. The district shall state in writing in the contract file the reasons for making an award.

(j)iiA contract awarded in violation of this subchapter is void.

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(k)iiIf a purchase is made at the campus level in a district with independently accredited junior colleges, and the district delegates purchasing decisions to the campus level, this section applies only to the campus and this subchapter does not require the district to aggregate and jointly award the different campus purchasing contracts. A district that adopts site-based purchasing under this subsection shall adopt a policy to ensure that campus purchases achieve the best value to the district and are not intended or used to avoid the requirement that a district aggregate purchases under Section 130.253(a).

(l)iiIf district property is destroyed, stolen, or severely damaged, a building or equipment undergoes major operational or structural failure, or a contractor is unable to fulfill its obligations in providing goods or services, and the board of trustees determines that the delay posed by using the methods required by Section 130.253(a) would pose a material threat to personal safety or potential damage to other property or would prevent or substantially impair the conduct of classes or other essential district activities, then contracts for the replacement or repair of the property may be made by methods other than those required by Section 130.253(a).

Sec.i130.257.iiRULES AND PROCEDURES; AUDITS BY STATE AUDITOR. (a)iiThe board of trustees may adopt rules and procedures for the acquisition of goods or services by the district.

(b)iiThe state auditor may audit purchases of goods or services by the district.

Sec.i130.258.iiNOTICE. (a) Except as otherwise provided by this subchapter, for any method of contracting selected under Section 130.253(a), the district shall publish the notice required by this section in at least two successive issues of any newspaper of general circulation in the county in which the district's central administrative office is located. The deadline for receiving bids or proposals may not be less than 10 business days after the date of the publication of the last newspaper notice. The deadline for receiving responses to a request for qualifications may not be less than five business days after the date of the publication of the last newspaper notice. If there is not a newspaper in the county in which the district's central administrative office is located, the notice shall be published in a newspaper in the county nearest the county seat of the county in which the district's central administrative office is located. In a two-step procurement process, the time and place where the second-step bids, proposals, or responses will be received are not required to be published separately.

(b)iiThe district may, as an alternative to publishing individual notices in a newspaper, publish on a publicly accessible Internet site the notices required by this section, provided the district publishes in a newspaper of general circulation at least one time per week the Internet address where district notices may be found. Notice posted on the Internet under this subsection must be posted every day for at least 10 business days before the deadline for receiving the bids, proposals, or responses to a request for qualifications.

(c)iiThe notice required by this section must include:

(1)iithe date, time, and place for receiving and opening bids, proposals, or statements of qualifications;

(2)iia description of the goods or services;

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(3)iithe location of any mandatory site inspections or pre-bid meetings at which bid, proposal, or qualification documents may be obtained or examined; and

(4)iithe amount of any required bid bond, payment bond, or performance bond.

Sec.i130.259.iiDISCUSSION AND REVISION OF PROPOSALS. (a) As provided in a request for proposals and under rules adopted by the district, the district may discuss acceptable or potentially acceptable proposals with bidders to assess a bidder's ability to meet the solicitation requirements.

(b)iiAfter receiving a proposal but before making an award, the district may permit the bidder to revise the proposal to obtain the best final offer.

(c)iiThe district may not disclose information derived from proposals submitted from competing bidders in conducting discussions under this section.

(d)iiThe district shall provide each bidder an equal opportunity to discuss and revise the bidder's proposal.

Sec.i130.260.iiPRE-BID CONFERENCE. (a) The district may require a principal, officer, or employee of each prospective bidder to attend a mandatory pre-bid conference conducted for the purpose of discussing contract requirements and answering questions from prospective bidders. Notice under this subsection must be included in the notice published under Section 130.258.

(b)iiAfter the district conducts a mandatory pre-bid conference, the district may send any additional required notice for the proposed contract only to prospective bidders who attended the conference.

Sec.i130.261.iiIDENTICAL BIDS. If, after considering the factors described by Section 130.256, the district determines that the district has received identical bids, the district shall cast lots to determine which bidder will be awarded the contract. The district shall invite the bidders to witness the selection process under this section. The selection process must be conducted by at least two district employees or members of the district's board of trustees.

Sec.i130.262.iiBID DEPOSIT. (a) The district may, as the district determines necessary, require a bid deposit in an amount determined by the district. The amount of the deposit, if any, must be stated in the notice required by Section 130.258 of the invitation to bid.

(b)iiOn the award of a contract or the rejection of all bids, the district shall refund the bid deposit of an unsuccessful bidder.

(c)iiFor public work contracts, the bid deposit required by the district, if any, may only be in the form of a bid bond written by a surety authorized to conduct business in this state.

(d)iiFor contracts other than public work contracts, the bid deposit required by the district, if any, may only be in the form of a bid bond written by a surety authorized to conduct business in this state or a cashier's check.

Sec.i130.263.iiPERFORMANCE BOND. A district may require a contractor to provide a performance bond in the amount of the contract before executing a contract for the purchase of goods or services with a value of $100,000 or more. The bond must be written by a surety authorized to conduct business in this state.

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Sec.i130.264.iiENFORCEMENT OF PURCHASING PROCEDURES: CRIMINAL PENALTIES; REMOVAL; INELIGIBILITY; INJUNCTION. (a) In this section:

(1)ii"Component purchases" means purchases of the component parts of an item that in normal purchasing practices would be purchased in one purchase.

(2)ii"Separate purchases" means purchases, made separately, of items that in normal purchasing practices would be purchased in one purchase.

(3)ii"Sequential purchases" means purchases, made over a period, of items that in normal purchasing practices would be purchased in one purchase.

(b)iiAn officer, employee, or agent of a district commits an offense if the person with criminal negligence makes or authorizes separate, sequential, or component purchases for the purpose of avoiding the requirements of Section 130.253 or 130.256. An offense under this subsection is a Class B misdemeanor and is an offense involving moral turpitude that causes a forfeiture of an officer's public office.

(c)iiAn officer, employee, or agent of a district commits an offense if the person with criminal negligence violates Section 130.253 or 130.256 other than by conduct described by Subsection (b). An offense under this subsection is a Class B misdemeanor and is an offense involving moral turpitude that causes a forfeiture of an officer's public office.

(d)iiAn officer or employee of a district commits an offense if the officer or employee knowingly violates Section 130.253 or Section 130.256 other than by conduct described by Subsection (b) or (c). An offense under this subsection is a Class C misdemeanor.

(e)iiThe final conviction of a person other than a trustee of a district for an offense under Subsection (b) or (c) results in the immediate removal from office or employment of that person. A trustee who is convicted of an offense under this section is subject to removal as provided by Chapter 66, Civil Practice and Remedies Code. For four years after the date of the final conviction, the removed person is ineligible to be a candidate for or to be appointed or elected to a public office in this state, is ineligible to be employed by or act as an agent for this state or a political subdivision of this state, and is ineligible to receive any compensation through a contract with this state or a political subdivision of this state. This subsection does not prohibit the payment of retirement benefits to the removed person or the payment of workers' compensation benefits to the removed person for an injury that occurred before the commission of the offense for which the person was removed. This subsection does not make a person ineligible for an office for which the federal or state constitution prescribes exclusive eligibility requirements.

(f)iiA court may enjoin performance of a contract made in violation of this subchapter. A county attorney, district attorney, criminal district attorney, citizen of the county in which the district is located, or interested party may bring an action for an injunction. A party who prevails in an action brought under this subsection is entitled to reasonable attorney's fees as approved by the court.

Sec.i130.265.iiADDITIONAL REQUIREMENTS FOR PURCHASING SERVICES AND CERTAIN COMMODITIES. (a) This section applies only to:

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(1)iithe purchase of tangible personal property, including produce, gasoline, and fuel oil, if the cost of the commodity is expected to exceed $35,000 during a fiscal year and must be determined at the time the need for the commodity arises; and

(2)iithe purchase of services other than construction services or professional services.

(b)iiThe notice requirements of Section 130.258 apply to purchases made under this section, except that the notice must specify the categories of property or services to be purchased under this section and solicit the names, addresses, and telephone numbers of vendors that are interested in supplying the property or services to the district. For each category specified by the district, the district shall create a vendor list consisting of each qualified vendor that responds to the notice and any other vendors the district elects to include.

(c)iiBefore the district makes a purchase subject to this section in a category specified by the district, the district must obtain written or telephone price quotations from at least three vendors from the list created by the district for that category. If fewer than three vendors are on the list, the district shall contact each vendor on the list. Whenever possible, the district shall confirm telephone quotes in writing, including electronic mail or facsimile transmission. The bidding records must be retained with the district's competitive bidding records and are subject to audit. In determining from whom to purchase the property or services, the district may consider the provisions of Section 130.256.

Sec.i130.266.iiNOTIFICATION OF CRIMINAL HISTORY OF CONTRACTOR. (a) A person or business entity that enters into a contract with a district must give advance notice to the district if the person or an owner or operator of the business entity has been convicted of a felony. The notice must include a general description of the conduct resulting in the conviction of a felony.

(b)iiA district may terminate a contract with a person or business entity if the district determines that the person or business entity failed to give notice as required by Subsection (a) or misrepresented the conduct resulting in the conviction. The district must compensate the person or business entity for services performed before the termination of the contract.

(c)iiThis section does not apply to a publicly held corporation.

SUBCHAPTERiL.iiSALE OF PERSONAL PROPERTY BY DISTRICT
AND AWARD OF MISCELLANEOUS CONTRACTS FOR SERVICES

Sec.i130.301.iiSALE OF PERSONAL PROPERTY BY DISTRICT. A sale of personal property by a junior college district that is not covered by Chapter 791, Government Code, shall be solicited and awarded in the same manner as a contract for a purchase of personal property or services under Subchapter K.

Sec.i130.302.iiAWARD OF MISCELLANEOUS CONTRACTS FOR SERVICES. Miscellaneous contracts for services, including contracts for bookstore services, food services, and vending services, shall be solicited and awarded in the same manner as a contract for a purchase of personal property or services under Subchapter K.

SECTIONi__.iiSection 271.023, Local Government Code, is amended to read as follows:

Wednesday, May 25, 2005 SENATE JOURNAL 3375

Sec.i271.023.iiCONFLICT OF LAWS. To the extent of any conflict, the provisions of Subchapter B, Chapter 44, Education Code, relating to the purchase of goods and services under contract by a school district and the provisions of Subchapter K, Chapter 130, Education Code, relating to the purchase of goods and services under contract by a junior college prevail over this subchapter.

SECTIONi__.iiSections 44.0311(b), 130.010, and 130.0101, Education Code, are repealed.

The amendment to CSHB 2525 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 4.

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

CSHB 2525 as amended was passed to third reading by a viva voce vote.

All Members are deemed to have voted "Yea" on the passage to third reading.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2525 ON THIRD READING

Senator Lindsay moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2525 be placed on its third reading and final passage.

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

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

COMMITTEEiiSUBSTITUTE
HOUSE BILL 955 ON SECOND READING

On motion of Senator Averitt and by unanimous consent, the regular order of business was suspended to take up for consideration CSHB 955 at this time on its second reading:

CSHB 955, Relating to the regulation of financial businesses and practices; providing civil penalties.

The bill was read second time.

Senator Deuell offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 955 by adding a new Section 2.16 and renumbering accordingly:

Amend Section 342.002(c) of the Texas Finance Code by striking the word "is" and adding the following "may be calculated at either 1/360th or".

The amendment was read.

Senator Deuell withdrew Floor Amendment No.i1.

3376 79th Legislature — Regular Session 78th Day

Senator Carona offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 955 in SECTION 4.01 of the bill, in amended Subsection (a), Section 14.208, Finance Code (committee printing page 8, lines 62 and 63), by striking "or directly to district court in accordance with Chapter 2001, Government Code" and substitute "in accordance with Chapter 2001, Government Code, or, in addition to any other rights or remedies for judicial review, may appeal the order to district court in accordance with Section 2001.173, Government Code".

The amendment to CSHB 955 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 2.

Senator West offered the following amendment to the bill:

Floor Amendment No. 3

Amend CSHB 955 by adding the following appropriately-numbered SECTIONS and renumbering subsequent SECTIONS, if applicable, accordingly:

"SECTIONi__.iiSubchapter D, Chapter 35, Business & Commerce Code, is amended by adding Section 35.62 to read as follows:

Sec.i35.62.iiPROHIBITED ACTS WITH RESPECT TO USE OF CUSTOMERS' SOCIAL SECURITY NUMBERS. (a)iiIn this section:

(1)ii"Customer" means an individual who has established or is attempting to establish an account with a person.

(2)ii"Financial institution" means:

(A)iia bank, or a subsidiary of a bank, savings association, savings bank, or credit union maintaining an office, branch, or agency office in this state; and

(B)iia financial institution as defined by 15 U.S.C. Sections 6801-6809.

(b)iiA person may not request a customer's social security number, or another number that includes four or more consecutive digits of a customer's social security number, as an identifier unless the number is needed to complete a credit check that is required to provide a service or product requested by the customer.

(c)iiA person that requests a customer's number to complete a credit check, as provided in Subsection (b), shall:

(1)iidestroy each record of the number by shredding, erasing, or other means after the credit check is completed; or

(2)iimaintain the number:

(A)iifor the sole purpose of allowing authorized employees to use the number to collect a debt or rent or to protect against fraud or unauthorized transactions; and

(B)iiin a database or other location that ensures the security and confidentiality of the number and protects against unauthorized access to, or use of, the number.

(d)iiWhen a customer's number is no longer maintained by the person as required by Subsection (c)(2), the person shall destroy each record of the number by shredding, erasing, or other means.

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(e)iiA person may not request an existing customer's social security number, or another number that includes four or more consecutive digits of an existing customer's social security number, to verify the customer's relationship with the person.

(f)iiThis section does not apply to:

(1)iia financial institution, mortgage lender, or mortgage broker, or a person duly licensed under Chapter 348 of the Finance Code;

(2)iia covered entity as defined by Section 601.001 or 602.001, Insurance Code;

(3)iia governmental entity; or

(4)iia person who is required to maintain and disseminate a privacy policy under the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191); or

(5)iia retail electric utility provider as defined by Section 31.002 of the Utilities Code.

(g)iiA person that violates this section is liable to the state for a civil penalty of $1,000 for each violation. The attorney general or the prosecuting attorney in the county in which the violation occurs may bring suit to recover the civil penalty imposed under this section. The attorney general may bring an action in the name of the state to restrain or enjoin a business from violating this section.

SECTIONi__.ii(a)iiThe Office of Consumer Credit Commissioner, with the assistance of the attorney general, shall conduct a study to develop and evaluate proposals to limit the use of social security numbers by businesses in this state.

(b)iiIn conducting the study, the consumer credit commissioner shall receive input from credit reporting agencies, businesses, and consumer groups.

(c)iiThe consumer credit commissioner shall evaluate whether, when a business contacts a credit reporting agency for a credit check of a customer, the business and credit reporting agency should create a unique code that:

(1)iiwould allow the business to retrieve the social security number of the customer for collection purposes; and

(2)iipermit the business to delete the social security number of the customer from the records of the business.

(d)iiThe consumer credit commissioner shall determine the date on which the system described by Subsection (c) of this section could be implemented and the feasibility of monitoring compliance with the system.

(e)iiNot later than July 1, 2006, the consumer credit commissioner shall submit a report to the legislature regarding the results of the study conducted under this section.

(f)iiThis section expires September 1, 2006.

The amendment was read.

Senator West offered the following amendment to Floor Amendment No. 3:

Floor Amendment No. 4

Amend Floor Amendment No. 3 to CSHB 955 by adding the following appropriately numbered item to the amendment:

(__)iiAdd the following appropriately numbered SECTION to the bill and renumber subsequent SECTIONS accordingly:

3378 79th Legislature — Regular Session 78th Day

SECTIONi__.iiThe change in law made by Section 35.62(e), Business & Commerce Code, as added by this Act, applies only to a request for a social security number that is made on or after September 1, 2006. A request made before September 1, 2006, is governed by the law as it existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

The amendment to Floor Amendment No. 3 to CSHB 955 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 4.

Question recurring on the adoption of Floor Amendment No.i3 to CSHBi955, the amendment as amended was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 3 as amended.

Senator West offered the following amendment to the bill:

Floor Amendment No. 5

Amend CSHB 955 (Senate committee printing) by adding the following appropriately numbered article and renumbering subsequent articles accordingly:

ARTICLE __. DISCLOSURE OF HOME MORTGAGE PURCHASES

SECTIONi__.01.iiSubtitle B, Title 4, Finance Code, is amended by adding Chapter 351 to read as follows:

CHAPTER 351. DISCLOSURE OF HOME MORTGAGE PURCHASES BY CERTAIN ENTERPRISES

Sec.i351.001.iiDEFINITIONS. In this chapter:

(1)ii"Mortgage" means a debt secured by a first lien on a manufactured home or residential real property designed principally for occupancy by one to four families that is created by a deed of trust, security deed, or other security instrument.

(2)ii"Public use database" means the government-sponsored enterprises database containing information on mortgage loans purchased by the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation that the Department of Housing and Urban Development makes available to the public under 12 U.S.C. Section 4543.

(3)ii"Regulations" means the regulations under 12 C.F.R. Part 203 issued by the Board of Governors of the Federal Reserve System to implement the home mortgage disclosure requirements of the Home Mortgage Disclosure Act of 1975 (12 U.S.C. Section 2801 et seq.).

Sec.i351.002.iiAPPLICABILITY. This chapter only applies to an enterprise as defined by 12 U.S.C. Section 4502.

Sec.i351.003.iiREPORTING REQUIREMENTS. (a) An enterprise shall submit to the finance commission not later than March 1 of each year a report containing information on mortgages:

(1)iisecured by property located in this state;

(2)iipurchased by the enterprise during the previous calendar year; and

(3)iirequired to be included in the public use database for the corresponding year.

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(b)iiThe enterprise shall include in the report, for each mortgage described by Subsection (a):

(1)iithe mortgage data that must be reported by a financial institution under the regulations in effect during the previous year, other than data that the finance commission determines by rule is not relevant to the purposes of this chapter; and

(2)iiany additional information included on the public use database that the finance commission has determined by rule is not redundant to the items required to be provided under Subdivision (1).

(c)iiAny report provided under Subsection (a) must include the name or identification number of the mortgage financing institution that sells a mortgage to an enterprise.

Sec.i351.004.iiEXEMPTIONS FROM REPORTING REQUIREMENTS. (a) The finance commission may adopt rules to exempt an enterprise from reporting information required by Section 351.003(b) on the grounds that the required information cannot be obtained by the enterprise.

(b)iiBefore adopting a rule under Subsection (a), the finance commission shall consider:

(1)iithe strong bargaining position of the enterprise in its dealings with loan sellers;

(2)iithe prior experience of the enterprise in obtaining mortgage information from sellers; and

(3)iithe best practices within the mortgage financing industry of collecting and transferring mortgage information.

(c)iiThe finance commission shall periodically review any exemption granted to an enterprise. The finance commission shall adopt a policy to apply an exemption only if the enterprise cannot obtain mortgage information even after following the best practices of collecting and transferring mortgage information.

Sec.i351.005.iiAVAILABILITY OF REPORT. The finance commission shall make the report submitted under Section 351.003 available to:

(1)iithe Texas Workforce Commission civil rights division for purposes of monitoring and promoting equal credit opportunity, fair lending, and fair housing; and

(2)iithe public at the cost of reproducing the report.

Sec.i351.006.iiADMINISTRATIVE PENALTY. (a) The commission may impose an administrative penalty on an enterprise that fails to file a report as required by Section 351.003.

(b)iiThe amount of the penalty may not exceed $5,000 and each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty. The amount shall be based on:

(1)iithe seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2)iithe history of previous violations;

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

(4)iiefforts to correct the violation; and

(5)iiany other matter that justice may require.

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(c)iiThe enforcement of the penalty may be stayed during the time the order is under judicial review if the person pays the penalty to the clerk of the court or files a supersedeas bond with the court in the amount of the penalty. A person who cannot afford to pay the penalty or file the bond may stay the enforcement by filing an affidavit in the manner required by the Texas Rules of Civil Procedure for a party who cannot afford to file security for costs, subject to the right of the finance commission to contest the affidavit as provided by those rules.

SECTIONi__.02.iiAn enterprise shall file the first report with the Finance Commission of Texas as required by Section 351.003, Finance Code, as added by this Act, not later than March 1, 2006. The first report must contain information on mortgages purchased by the enterprise during the 2005 calendar year.

The amendment was read.

Senator West withdrew Floor Amendment No.i5.

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

CSHB 955 as amended was passed to third reading by a viva voce vote.

All Members are deemed to have voted "Yea" on the passage to third reading.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 955 ON THIRD READING

Senator Averitt moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi955 be placed on its third reading and final passage.

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

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

GUESTS PRESENTED

Senator Nelson was recognized and introduced to the Senate students from the University of North Texas.

The Senate welcomed its guests.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3426 ON SECOND READING

Senator Shapleigh moved to suspend the regular order of business to take up for consideration CSHBi3426 at this time on its second reading:

CSHB 3426, Relating to the establishment of a binational alcohol and substance abuse task force.

The motion prevailed.

Senator Brimer asked to be recorded as voting "Nay" on suspension of the regular order of business.

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

Wednesday, May 25, 2005 SENATE JOURNAL 3381

All Members are deemed to have voted "Yea" on the passage to third reading except as follows:

Nays:iiBrimer.

COMMITTEEiiSUBSTITUTE
HOUSE BILL 3426 ON THIRD READING

Senator Shapleigh moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi3426 be placed on its third reading and final passage.

The motion prevailed by the following vote:iiYeasi30, Naysi1.

Nays:iiBrimer.

The bill was read third time and was passed by the following vote:iiYeasi30, Naysi1. (Same as previous roll call)

HOUSE BILL 2668 ON SECOND READING

On motion of Senator Wentworth and by unanimous consent, the regular order of business was suspended to take up for consideration HB 2668 at this time on its second reading:

HB 2668, Relating to the performance by a private entity of the functions of a local child support registry or a child support enforcement agency and to the receipt, disbursement, and monitoring of child support payments.

The bill was read second time.

Senator Wentworth offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 2668 (Senate committee printing) as follows:

(1)iiIn SECTION 2 of the bill, in added Section 154.241 (g), Family Code (page 1, lines 31-33), strike "either under a contract with a county commissioners court or domestic relations office executed under Section 204.002 or under an appointment by a court" and substitute "only under a contract with a county commissioners court or domestic relations office executed under Section 204.002".

(2)iiStrike SECTIONS 4-16 of the bill (page 1, line 41, through page 4, line 64) and renumber subsequent SECTIONS of the bill appropriately.

The amendment to HB 2668 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 1.

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

HB 2668 as amended was passed to third reading by a viva voce vote.

All Members are deemed to have voted "Yea" on the passage to third reading.

3382 79th Legislature — Regular Session 78th Day

HOUSE BILL 2668 ON THIRD READING

Senator Wentworth moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi2668 be placed on its third reading and final passage.

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

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

HOUSE BILL 3041 ON SECOND READING

On motion of Senator West and by unanimous consent, the regular order of business was suspended to take up for consideration HBi3041 at this time on its second reading:

HB 3041, Relating to the designation of the structure on Spur 366 connecting the east and west levee of the Trinity River as the Margaret Hunt Hill Bridge.

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

All Members are deemed to have voted "Yea" on the passage to third reading.

HOUSE BILL 3041 ON THIRD READING

Senator West moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that HBi3041 be placed on its third reading and final passage.

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

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

(Senator Armbrister in Chair)

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2120 ON SECOND READING

On motion of Senator Lindsay and by unanimous consent, the regular order of business was suspended to take up for consideration CSHB 2120 at this time on its second reading:

CSHB 2120, Relating to the administration and powers of county government.

The bill was read second time.

Senator Harris offered the following amendment to the bill:

Floor Amendment No. 1

Amend CSHB 2120 as follows:

(1)iiInsert the following appropriately numbered section:

SECTION ___. Section 281.056, Health and Safety Code, is amended by amending Subsections (b), (c), and (d) and adding Subsection (b-1) to read as follows:

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(b)iiExcept as provided by Subsection (b-1), a district may employ or contract with private legal counsel to represent the district on any legal matter. If the district does not employ or contract with private legal counsel on a legal matter, the [The] county attorney, district attorney, or criminal district attorney, as appropriate, with the duty to represent the county in civil matters shall represent the district [in all legal matters].

(b-1)iiThe county attorney, district attorney, or criminal district attorney, as appropriate, with the duty to represent the county in civil matters shall, in all legal matters, represent a district located in:

(1)iia county with a population of 650,000 or more that borders the United Mexican States;

(2)iia county with a population of 3.4 million or more; or

(3)iia county with a population of more than 800,000 that was not included in the boundaries of a hospital district before September 1, 2003.

(c)iiA [The] board that receives legal services from a county attorney, district attorney, or criminal district attorney may employ additional private legal counsel when the board determines that additional counsel is advisable. A board that contracts or employs private legal counsel under Subsection (b) may request and receive additional legal services from the county attorney, district attorney, or criminal district attorney, as appropriate, with the duty to represent the county in civil matters when the board determines that additional counsel is necessary.

(d)iiIf the district receives legal services from a county attorney, district attorney, or criminal district attorney, the [The] district shall contribute sufficient funds to the general fund of the county for the account of the budget of the county attorney, district attorney, or criminal district attorney, as appropriate, to pay all additional salaries and expenses incurred by that officer in performing the duties required by the district.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 1.

Senator Lindsay offered the following amendment to the bill:

Floor Amendment No. 2

Amend CSHB 2120 (Senate committee printing) as follows:

(1)iiIn Section 49(a), strike "Except as provided by Subsection (b) of this section,".

(2)iiStrike all of Section 49(b).

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 2.

Senator Seliger offered the following amendment to the bill:

Floor Amendment No. 3

Amend CSHB 2120 (committee printing, on page 3, line 11) by inserting the following SECTION and renumbering subsequent SECTIONS accordingly:

3384 79th Legislature — Regular Session 78th Day

SECTIONi6.iiArticle 27.18, Code of Criminal Procedure, is amended by adding Subsections (d), (e), (e-1), and (f) to read as follows:

(d)iiA 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.

(e)iiA defendant who enters a plea or waiver under Subsection (d):

(1)iiconsents to venue in the county in which the court receiving the plea or waiver is located; and

(2)iiwaives any claim of error related to venue.

(e-1)iiSubsection (e) does not prohibit a court from granting a defendant's motion for change of venue during the trial of the defendant.

(f)iiIf a defendant enters a plea of guilty or nolo contendere 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.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 3.

Senator Williams offered the following amendment to the bill:

Floor Amendment No. 4

Amend CSHB 2120 (Senate committee printing) by adding the following appropriately numbered SECTION to the bill and renumbering the subsequent SECTIONS accordingly:

SECTIONi__.iiSection 172.003(l), Local Government Code, is amended to read as follows:

(1)ii"Affiliated service contractor" means an organization qualified for exemption under Section 501(c), Internal Revenue Code (26 U.S.C. Section 501(c)), as amended, that provides governmental or quasi-governmental services on behalf of a political subdivision and derives more than 25 [50] percent of its gross revenues from grants or funding from the political subdivision.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 4.

Senator Shapleigh offered the following amendment to the bill:

Floor Amendment No. 5

Amend CSHB 2120, by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill accordingly:

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SECTIONi__.iiSection 172.015, Local Government Code, is amended to read as follows:

Sec. 172.015. SUBROGATION; ADEQUATE RECOVERY. (a) The payor of employee benefits, whether a political subdivision, group of political subdivisions, pool, or carrier providing reinsurance to one of those entitites, is [shall be] subrogated to the employees' right of recovery for personal injuries caused by the tortuous conduct of a third party.

(b)iiA payor of employee benefits whose interest is not actively represented by an attorney in a third-party action shall pay a fee to an attorney representing the claimant employee in an amount determined under an agreement entered into between the attorney and the payor of employee benefits. In the absence of an agreement, the court shall award to the attorney, payable out of the recovery of the payor of employee benefits:

(1)iia reasonable fee for recovery of the interest of the payor of employee benefits, not to exceed one-third of the payor's recovery; and

(1)iia proportionate share of expenses.

(c)iiIf the injured employee is not able to realize a complete and adequate recovery for injuries sustained as a result of the actionable fault of a third party, the payor of employee benefits is entitled to a pro rata recovery consistent with the recovery obtained by the injured employee.

SECTIONi__.iiSection 172.015, Local Government Code, as amended by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. An action that accrued before the effective date of this Act is governed by the law applicable to the action immediately before the effective date of this Act, and that law is continued in effect for that purpose.

The amendment was read.

Senator Shapleigh temporarily withdrew Floor Amendment No.i5.

Senator Carona offered the following amendment to the bill:

Floor Amendment No. 6

Amend CSHB 2120 by inserting the following new SECTION appropriately numbered:

SECTIONi__.iiChapter 263, Local Government Code, is amended by adding Subchapter F to read as follows:

SUBCHAPTER F. ADVERTISING SPACE

Sec. 263.251. SALE OR LEASE OF ADVERTISING SPACE. (a) The commissioners court of a county may adopt a procedure by which the county may:

(1)iilease to another entity advertising space located:

(A)iiin or on a building or part of a building owned by the county;

(B)iion a vehicle owned by the county; or

(C)iion an official county website; or

(2)iisell advertising space located on correspondence distributed by the county through the United States Postal Service.

3386 79th Legislature — Regular Session 78th Day

(b)iiThe procedure must include a requirement that the county publish, before a sale or lease is made, a notice of its intent to sell or lease the advertising space. The notice must:

(1)iibe published:

(A)iiat least one time in a newspaper of general circulation in the county not earlier than the 30th day or later than the 14th day before the date the award of the sale or lease is made; and

(B)iion the county's official website continuously for the 14 days immediately before the date the award of the sale or lease is made;

(2)iiinclude a description of the advertising space, including its location and a description of the part of any real or personal property that the advertising space occupies; and

(3)iiinclude a description of the procedure by which bids or proposals for the sale or lease may be submitted.

(c)iiUnder the procedure, the commissioners court may reject any and all bids or proposal submitted.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 6.

Senator Fraser offered the following amendment to the bill:

Floor Amendment No. 7

Amend CSHB 2120 by adding the following appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS accordingly:

SECTIONi__.iiSubchapter Z, Local Government Code, is amended by adding Section 271.908 to read as follows:

Sec. 271.908. A county or municipality that enters a contract of $10,000 or less for building or construction is not required to comply with Subsections (a) and (b) of Section 406.096, Labor Code, if the procurement is with a local micro-business as defined by Section 2006.001, Government Code, and is located within the territorial boundaries of the county or municipality.

The amendment was read.

Senator Fraser withdrew Floor Amendment No.i7.

Senator Gallegos offered the following amendment to the bill:

Floor Amendment No. 8

Amend CSHB 2120 by adding the following appropriately numbered SECTION to the bill and renumbering the subsequent SECTIONs accordingly:

SECTIONi___.iiSubtitle B, Title 11, Local Government Code, is amended by adding Chapter 353 to read as follows:

CHAPTER 353. COUNTY HAZARDOUS MATERIALS SERVICES

Sec.i353.001.iiDEFINITIONS. In this chapter:

(1)ii"Concerned party" means a person:

(A)iiinvolved in the possession, ownership, or transportation of a hazardous material that is released or abandoned; or

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(B)iiwho has legal liability for the causation of an incident resulting in the release or abandonment of a hazardous material.

(2)ii"Hazardous material" means a flammable material, an explosive, a radioactive material, a hazardous waste, a toxic substance, or related material, including a substance defined as a "hazardous substance," "hazardous material," "toxic substance," or "solid waste" under:

(A)iithe federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.);

(B)iithe federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.);

(C)iithe federal Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.);

(D)iithe federal Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.); or

(E)iiChapter 361, Health and Safety Code.

Sec.i353.002.iiAPPLICABILITY. This chapter applies to an incident involving hazardous material that has been leaked, spilled, released, or abandoned on any property.

Sec.i353.003.iiHAZARDOUS MATERIALS SERVICES. (a) A county may provide hazardous materials services, including a response to an incident involving hazardous material that has been leaked, spilled, released, or abandoned, if:

(1)iithe county first provides reasonable notice to a concerned party regarding the need for the hazardous materials services so that the concerned party has a reasonable opportunity to respond to the incident involving hazardous material; and

(2)iithe concerned party fails to respond or fails to respond in a timely and effective manner to the incident.

(b)iiA county may provide limited control and containment measures that are necessary to protect human health and the environment without first complying with the requirements of Subsection (a) if the county is the first entity to arrive at a site where an incident involving hazardous material has occurred that is prepared to take action in response to the incident.

(c)iiIf the hazardous material is natural gas released from an underground facility as defined by Section 251.002, Utilities Code, the county:

(1)iimust comply with the requirements of Section 251.159, Utilities Code; and

(2)iimay not operate any equipment or other controls or devices at the underground facility without the express permission of the operator of the facility.

Sec.i353.004.iiFEE FOR PROVIDING HAZARDOUS MATERIALS SERVICE; EXCEPTION. (a) A county, or a person authorized by contract on the county's behalf, may charge a reasonable fee, including a fee to offset the cost of providing control and containment measures under Section 353.003(b), to a concerned party for responding to a hazardous materials service call.

(b)iiA county, or a person authorized by contract on the county's behalf, may charge a fee for providing hazardous materials services under Section 353.003(a) only if the county has complied with the requirements of that subsection. A concerned party is not liable for a fee associated with the county's hazardous materials services

3388 79th Legislature — Regular Session 78th Day

(c)iiAn individual who is a concerned party does not have to pay a fee under this section if:

(1)iithe individual is not involved in the possession, ownership, or transportation of the hazardous material as the employee, agent, or servant of another person;

(2)iithe individual is involved solely for private, noncommercial purposes related to the individual's own property and the individual receives no compensation for any services involving the hazardous materials; and

(3)iithe hazardous materials possessed, owned, or being transported by the individual are in forms, quantities, and containers ordinarily available for sale as consumer products to members of the general public.

Sec.i353.005.iiEXEMPTION FOR GOVERNMENTAL ENTITIES. This chapter does not apply to hazardous materials owned or possessed by a governmental entity.

The amendment was read.

Senator Gallegos temporarily withdrew Floor Amendment No.i8.

Senator Wentworth offered the following amendment to the bill:

Floor Amendment No. 9

Amend CSHB 2120 (Senate committee printing) as follows:

(1)iiInsert the following appropriately numbered SECTION and renumbering subsequent SECTIONS accordingly:

SECTIONi____.iiChapter 372, Local Government Code, is amended

by adding Subchapter C to read as follows:

SUBCHAPTER C. IMPROVEMENT PROJECTS IN CERTAIN COUNTIES

Sec.i372.101.iiDEFINITIONS. In this subchapter:

(1)ii"Board" means the board of directors of a district.

(2)ii"Commissioners court" means the governing body of the county.

(3)ii"County" means the county in which the public improvement project authorized by this subchapter or the district is located.

(4)ii"District" means a public improvement district that may be created by a county authorized under this subchapter.

(5)ii"Hotel" has the meaning assigned by Section 156.001, Tax Code, and includes a timeshare, overnight lodging unit, or condominium during the time the timeshare, overnight lodging unit, or condominium is rented by a person who is not the owner of the timeshare, overnight lodging unit, or condominium.

(6)ii"Municipality" means the municipality in whose extraterritorial jurisdiction the improvement project is to be located.

Sec.i372.102.iiPURPOSE. By enacting this subchapter, the legislature has created a program for economic development as provided in Section 52-a, Article III, Texas Constitution. A county eligible under this subchapter is authorized to engage in

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Sec.i372.103.iiCOUNTY MAY ESTABLISH DISTRICT. In the event a county determines it is in the best interest of the county, it may create a public improvement district. A district created under this subchapter is a political subdivision of this state.

Sec.i372.104.iiAPPLICABILITY; CONFLICT OF LAWS. In the event of a conflict between this subchapter and Subchapter A, this subchapter controls.

Sec.i372.105.iiESTABLISHMENT OF ECONOMIC DEVELOPOMENT PROJECTS; OPTIONAL CREATION OF PUBLIC IMPROVEMENT DISTRICT.ii(a)iiThe governing body of a county with a population of one million or more, but not more than 3.3 million, may by order, upon receipt of a petition satisfying the requirements of Sectioni372.005, establish an economic development project in a designated portion of that county, or, if the county determines it is in the best interests of the county, create a district only in an area located in the extraterritorial jurisdiction of a municipality in that county.

(b)iiThe order must:

(1)iidescribe the territory in which the economic development project is to be located or the boundaries of a public improvement district;

(2)iiif the county has determined that the creation of a district is in the best interests of the county, specifically authorize the district to exercise the powers of this subchapter; and

(3)iistate whether the petition requests improvements to be financed and paid for with taxes authorized by this subchapter instead of or in addition to assessments.

Sec.i372.106.iiGOVERNING BODY; TERMS. If a county elects to delegate the authority granted under this subchapter, it shall appoint a board of seven directors to serve staggered two-year terms, with three or four directors' terms expiring Junei1 of each year to manage the economic development project or, at the option of the county, govern the public improvement district.

Sec.i372.107.iiELIGIBILITY.ii(a) The county must appoint directors who are at least 18 years old.

(b)iiIf the population of the district is more than 1,000, the county must appoint as directors individuals who are at least 18 years old, reside in the district, and meet the qualifications of Section 375.063.

Sec.i372.108.iiVACANCIES; QUORUM.ii(a) A board vacancy is filled in the same manner as the original appointment.

(b)iiA vacant board position is not counted for the purposes of establishing a quorum of the board.

Sec.i372.109.iiCONFLICTS OF INTEREST.iiThe governing body of an eligible county must comply with Chapter 171 in considering any conflicts of interest for directors.

Sec.i372.110.iiCOMPENSATION.ii(a) A county is authorized to compensate the directors when they perform the duties of a director. For purposes of this section, "performs the duties of a director" means substantial performance of the management

3390 79th Legislature — Regular Session 78th Day

(b)iiThe county shall compensate a director not more than $50 a day for each day that the director performs the duties of a director.

Sec.i372.111.iiOATH AND BOND; OFFICER ELECTIONS.iiAs soon as practicable, a board member shall give the bond and take the oath of office in accordance with Sectioni375.067, and the board shall elect officers in accordance with Sectioni375.068.

Sec.i372.112.iiELECTION DATES.ii(a) For an election ordered by the county under this subchapter before Decemberi31, 2005, the uniform election dates under the Election Code in effect on Januaryi1, 2005, apply.

(b)iiThis section expires January 1, 2007.

Sec.i372.113.iiPOWERS AND DUTIES.ii(a) A county operating under this subchapter has the powers and duties of:

(1)iia county development district under Chapter 383, except for Section 383.066;

(2)iia road district created by a county under Section 52, Article III, Texas Constitution; and

(3)iia municipality or county under Chapter 380 or 381, or under Section 372.003(b)(9).

(b)iiA county is authorized to manage an economic development project in a designated portion of the county, or to create a public improvement district and to delegate to an appointed board of directors the county's powers and duties, as provided in this subchapter.

(c)iiA county may not delegate to a district the powers and duties of a road district or provide water, wastewater, or drainage facilities under this section unless the municipality and county both consent by resolution.

Sec.i372.114.iiDEVELOPMENT AGREEMENTS.iiA county may enter into a development agreement with owners of land in the territory designated for the economic development project or, if the county has determined to create a district, that entity is authorized to enter into an agreement, for a term not to exceed 30 years on any terms and conditions the county or the board considers advisable. The parties may amend the agreement.

Sec.i372.115.iiECONOMIC DEVELOPMENT AGREEMENT; ELECTION; TAXES.ii(a) A county may enter into an agreement only on terms and conditions the commissioners court, and any board of directors of a district created under this subchapter, consider advisable, to make a grant or loan of public money to promote state or local economic development and to stimulate business and commercial activity in the territory where the economic development project is located, or in the district, including a grant or loan to induce the construction of a tourist destination or attraction in accordance with Chapter 380 or 381.

(b)iiIf the county so authorizes it, an election may be ordered by the district created by the county so that a grant or loan agreement may be approved by the voters of the district at an election held in the district for that purpose, the grant or loan may

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(c)iiIf the property owners petitioning a county to create a district under Sectioni372.105 propose that the district be created only to provide economic development grants or loans and road improvements and not to impose assessments, and the county determines that the creation of the district is in the best interests of the county, the district is not required to prepare a feasibility report, a service plan or assessment plan, or prepare an assessment roll as required by this chapter.

Sec.i372.116.iiCONTRACTS; GENERAL.ii(a) In the event the county creates a district, the district may contract with any person, including the municipality or county, on the terms and conditions and for a period of time the board determines, to:

(1)iiaccomplish any district purpose, including a contract to pay, repay, or reimburse from tax proceeds or another specified source of money any costs, including reasonable interest, incurred by a person on the county's or the district's behalf, including all or part of the costs of an improvement project; and

(2)iireceive, administer, and perform the county's or the district's duties and obligations under a gift, grant, loan, conveyance, or other financial assistance arrangement relating to the investigation, planning, analysis, study, design, acquisition, construction, improvement, completion, implementation, or operation by the district or another person of an improvement project or proposed improvement project.

(b)iiA state agency, municipality, county, other political subdivision, corporation, or other person may contract with the county or district to carry out the purposes of this subchapter.

Sec.i372.117.iiPROCUREMENT CONTRACTS.iiIn the event a county creates a district under this subchapter, such district may contract for materials, supplies, and construction:

(1)iiin accoradance with the laws applicable to counties; or

(2)iiin the same manner that a local government corporation created pursuant to Chapter 431, Transportation Code, is authorized to contract.

Sec.i372.118.iiRULES; ENFORCEMENT.iiA county may authorize the board of a district created under this subchapter to adopt rules:

(1)iito administer and operate a district authorized by the commissioners court;

(2)iifor the use, enjoyment, availability, protection, security, and maintenance of district property, including facilities; or

(3)iito provide for public safety and security in the district.

Sec.i372.119.iiFEES.iiA county may authorize a board to establish, revise, repeal, enforce, collect, and apply the proceeds from user fees or charges for the enjoyment, sale, rental, or other use of its facilities or other property, or for services or improvement projects.

3392 79th Legislature — Regular Session 78th Day

Sec.i372.120.iiRULES; REGULATION OF ROADS AND OTHER PUBLIC AREAS.ii(a) A county may authorize a board to adopt rules to regulate the private use of public roadways, open spaces, parks, sidewalks, and similar public areas in the district, if the use is for a public purpose.

(b)iiTo the extent a rule adopted under this section conflicts with a rule, order, ordinance, or regulation of the county or municipality, the county or municipality rule, order, ordinance, or regulation controls.

(c) A rule adopted under this section may provide for the safe and orderly use of public roadways, open spaces, parks, sidewalks, and similar public areas in the area of the district or economic development project.

Sec. 372.121. ROAD PROJECTS. (a) To the extent authorized by Section 52, Article III, Texas Constitution, the county may delegate to the district the authority to construct, acquire, improve, maintain, or operate macadamized, graveled, or paved roads or turnpikes, or improvements in aid of those roads or turnpikes, inside the territory targeted by the county for an economic development project, or the district.

(b) A road project must meet all applicable construction standards, zoning and subdivision requirements, and regulatory ordinances of each municipality in whose corporate limits or extraterritorial jurisdiction the district is located. If the district is located outside the extraterritorial jurisdiction of a municipality, a road project must meet all applicable construction standards, zoning and subdivision requirements, and regulatory ordinances of each county in which the district is located.

Sec. 372.122. UTILITIES. (a) This subchapter does not grant the board appointed by a county under this subchapter any right-of-way management authority over public utilities.

(b) To the extent the construction, maintenance, or operation of a project under this subchapter requires the relocation or extension of a public utility facility, the district shall reimburse the public utility for all costs associated with the relocation, removal, extension, or other adjustment of the facility.

Sec. 372.123. SERVICE PLAN REQUIRED. The commissioners court may require an annual service plan, in the manner provided for by Section 372.013, which must meet the commissioners court's review and approval.

Sec. 372.124. NO EMINENT DOMAIN. If a county creates a district under this subchapter, the district may not exercise the power of eminent domain.

Sec. 372.125. NO TAX ABATEMENTS. A county may not grant a tax abatement or enter into a tax abatement agreement for a district created under this subchapter.

Sec. 372.126. BONDS; NOTES. (a) The county commissioners court must grant prior approval to a district it creates under this subchapter before a district is authorized to issue bonds. If the population in the district is more than 1,000, a bond issuance must be approved by a majority of those voting in an election held for that purpose. A bond election under this subsection does not affect prior bond issuances and is not required for refunding bond issuances.

(b) A commissioners court must grant prior approval to a district it creates under this subchapter before such district is authorized to issue a negotiable promissory note or notes.

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(c) If the commissioners court grants the approvals in this section, bonds, notes, and other district obligations may be secured by district revenue or any type of district taxes or assessments.

Sec. 372.127. AUTHORITY TO IMPOSE ASSESSMENTS AND AD VALOREM, SALES AND USE, AND HOTEL OCCUPANCY TAXES; ELECTION. (a) A county or a district created under this subchapter may accomplish its purposes and pay the cost of services and improvements by imposing:

(1) an assessment;

(2) an ad valorem tax;

(3) a sales and use tax; or

(4) a hotel occupancy tax.

(b) If approved by the county commissioners court, and if approved at an election called by the district, and in accordance with Section 372.127(c), a district may impose an ad valorem tax, hotel occupancy tax, or sales and use tax to accomplish the economic development purposes prescribed by Section 52a, Article III, Texas Constitution.

(c) A county must adopt an order providing whether a district created under this subchapter may have authority to impose a hotel occupancy tax, sales and use tax, or ad valorem tax, and must provide the rate at which the district may impose such tax or taxes. A tax rate approved by the commissioners court and pledged to secure bonds, notes, grant agreements, or development agreements may not be reduced until the obligations of those instruments have been satisfied.

Sec. 372.128. USE OF REVENUE FROM TAXES. A tax authorized by a county to be imposed under this subchapter may be used to accomplish any improvement project or road project, or to provide any service authorized by this subchapter, chapter or Chapter 380, 381, or 383.

Sec. 372.129. HOTEL OCCUPANCY TAX. (a) A county may authorize a district to impose a hotel occupancy tax on a person who pays for the use or possession of or for the right to the use or possession of a room that is ordinarily used for sleeping in a hotel in the district.

(b) If authorized by a county, a district shall impose a hotel occupancy tax as provided by Chapter 383, Local Government Code, and Section 352.107, Tax Code, except that a hotel occupancy tax:

(1) may be used for any purpose authorized in this subchapter; and

(2) is authorized by the county to be imposed by the district.

(c) The hotel occupancy tax rate is the greater of nine percent or the rate imposed by the municipality.

(d) A hotel occupancy tax may not be imposed on the occupants of a hotel unless the owner of the hotel agrees to the imposition of the hotel occupancy taxes under this subchapter. After the owner agrees, the agreement may not be revoked by the owner of the hotel or any subsequent owner of the hotel. After an agreement under this section, the district may impose hotel occupancy taxes as provided by this subchapter.

Sec. 372.130. SALES AND USE TAX. (a) A commissioners court may authorize a district to impose a sales and use tax in increments of 1/8 of one percent up to a rate of two percent.

3394 79th Legislature — Regular Session 78th Day

(b) Except as otherwise provided in this subchapter, a sales and use tax must be imposed in accordance with Chapter 383, Local Government Code, and Chapter 323, Tax Code.

Sec. 372.131. AD VALOREM TAX. A commissioners court may authorize a district to impose an ad valorem tax on property in the district in accordance with Chapter 257, Transportation Code.

Sec. 372.132. BORROWING. The commissioners court may authorize a district to borrow money for any district purpose, including for a development agreement that authorizes the district to borrow money.

Sec. 372.133. REPAYMENT OF COSTS. The commissioner's court may authorize a district, by a lease, lease-purchase agreement, installment purchase contract, or other agreement, or by the imposition or assessment of a tax, user fee, concession, rental, or other revenue or resource of the district, to provide for or secure the payment or repayment of:

(1) the costs and expenses of the establishment, administration, and operation of the district;

(2) the district's costs or share of costs of an improvement project; or

(3) the district's contractual obligations or indebtedness.

Sec. 372.134. LIABILITIES; ASSUMPTION OF ASSETS AFTER COMPLETE ANNEXATION BY MUNICIPALITY. (a) In the event a county has created a district under this subchapter, and if the municipality annexes the entire district territory, the municipality shall succeed to such district's assets, but is not liable for the district's debt or other obligations.

(b) If the county has authorized the district created under this subchapter to have debt or other obligations, the district shall remain in existence after the territory is annexed by the municipality, for the purpose of collecting any taxes or assessments authorized by the county and imposed by the district prior to the annexation, which shall be used by the district solely for the purpose of satisfying any preexisting county authorized district debt or other obligations. After the debt or other obligations have been discharged, or two years have expired since the date of the annexation, the district is dissolved and any outstanding debt or obligations are extinguished.

Sec. 372.135. AUTHORITY TO IMPOSE TAXES OR ASSESSMENTS AFTER PARTIAL OR COMPLETE ANNEXATION. (a) After a district created by a county under this subchapter has been annexed by a municipality wholly or partly for general purposes, the county shall not authorize the district to impose an ad valorem tax, hotel occupancy tax, or sales and use tax, or collect an assessment in the area that the municipality overlaps the district, except as provided by Subsection (b) or Section 372.134(b).

(b) A district may continue to impose a tax in an area that the municipality annexes for limited purposes and in which the municipality does not impose taxes. If the municipality annexes an area for limited purposes and imposes some of the taxes which the district is imposing but not all of them, the district may continue to impose taxes only to the extent that the level of taxation of the municipality and the district combined, calculating the hotel tax, the sales tax, and the ad valorem tax independently, is equal to or less than the tax level of the municipality as to fully annexed areas.

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(c) The legislature intends that the level of taxation of areas where the district and the municipality overlap do not exceed the level of taxation of fully annexed areas.

(2) Strike SECTION 49 of the bill (page 18, lines 60-65) and substitute the following:

SECTION ____. (a) Except as provided by Subsections (b) of this section, this Act takes effect September 1, 2005.

(b) The provisions of this Act amending Chapter 372, Local Government Code, take 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, these provisions take effect September 1, 2005.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 9.

Senator Madla offered the following amendment to the bill:

Floor Amendment No. 10

Amend CSHB 2120 (Senate committee printing) by adding the following appropriately numbered section and renumbering the remaining sections accordingly:

SECTIONi__.iiSection 374.017, Local Government Code, is amended by adding Subsection (l) to read as follows:

(l)iiA private nonprofit corporation or foundation may acquire real property in an urban renewal area from a municipality, county, or agency pursuant to an option to purchase the real property for the minimum disposition price as determined by the municipality, county, or agency and stated in the option to purchase agreement, regardless of any changes in the market value of the property, if:

(1)iithe property was developed in accordance with the municipality's or county's urban renewal plan; and

(2)iithe development contributes to the elimination of a federally defined blighted area.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 10.

Senator Brimer offered the following amendment to the bill:

Floor Amendment No. 11

Amend CSHB 2120 by inserting two new SECTIONS appropriately numbered to read as follows:

SECTIONi__.iiSubsection (c), Section 343.011, Health and Safety Code, is amended to read as follows:

(c)iiA public nuisance is:

(1)iikeeping, storing, or accumulating refuse on premises in a neighborhood unless the refuse is entirely contained in a closed receptacle;

3396 79th Legislature — Regular Session 78th Day

(2)iikeeping, storing, or accumulating rubbish, including newspapers, abandoned vehicles, refrigerators, stoves, furniture, tires, and cans, on premises in a neighborhood or within 300 feet of a public street for 10 days or more, unless the rubbish or object is completely enclosed in a building or is not visible from a public street;

(3)iimaintaining premises in a manner that creates an unsanitary condition likely to attract or harbor mosquitoes, rodents, vermin, or disease-carrying pests;

(4)iiallowing weeds to grow on premises in a neighborhood if the weeds are located within 300 feet of another residence or commercial establishment;

(5)iimaintaining a building in a manner that is structurally unsafe or constitutes a hazard to safety, health, or public welfare because of inadequate maintenance, unsanitary conditions, dilapidation, obsolescence, disaster, damage, or abandonment or because it constitutes a fire hazard;

(6)iimaintaining on abandoned and unoccupied property in a neighborhood, or maintaining on any property in a neighborhood in a county with a population of more than 1.1 million, a swimming pool that is not protected with:

(A)iia fence that is at least four feet high and that has a latched gate that cannot be opened by a child; or

(B)iia cover over the entire swimming pool that cannot be removed by a child;

(7)iimaintaining a flea market in a manner that constitutes a fire hazard;

(8)iidiscarding refuse or creating a hazardous visual obstruction on:

(A)iicounty-owned land; or

(B)iiland or easements owned or held by a special district that has the commissioners court of the county as its governing body; or

(9)iidiscarding refuse on the smaller of:

(A)iithe area that spans 20 feet on each side of a utility line; or

(B)iithe actual span of the utility easement.

SECTIONi__.iiThe change in law made by this Act to Subsection (c), Section 343.011, Health and Safety Code, applies only to a swimming pool constructed or installed on or after September 1, 2005, or located on property sold on or after September 1, 2005. A swimming pool constructed or installed before September 1, 2005, is governed by the law in effect immediately before the effective date of this Act until the property on which the pool is located is sold, and the former law is continued in effect for that purpose.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 11.

Senator Wentworth offered the following amendment to the bill:

Floor Amendment No. 12

Amend CSHB 2120 (Senate committee report) by adding the following sections to the bill and renumbering subsequent sections accordingly:

SECTIONi__.iiSection 209.009, Property Code, is amended to read as follows:

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Sec.i209.009.iiFORECLOSURE SALE PROHIBITED IN CERTAIN CIRCUMSTANCES.ii(a)iiA property owners' association may not foreclose a property owners' association's assessment lien if the debt securing the lien consists solely of:

(1)iifines assessed by the association; or

(2)iiattorney's fees incurred by the association solely associated with fines assessed by the association.

(b)iiUnless otherwise provided in writing by the property owner, a payment received by a property owners' association from the owner shall be applied to the owner's debt in the following order of priority:

(1)iiany delinquent assessment;

(2)iiany current assessment;

(3)iiany fines assessed by the association; and

(4)iiany attorney's fees incurred by the association solely associated with fines assessed by the association.

(c)iiSubsection (b) does not apply to a payment received by a property owners' association if:

(1)iimembership in the property owners' association is mandatory for owners or for a defined class of owners of private real property in a defined geographic area in a county with a population of 3.3 million or more or in a county adjacent to a county with a population of 3.3 million or more;

(2)iithe property owners' association has the power to make mandatory special assessments for capital improvements or mandatory regular assessments; and

(3)iithe amount of the mandatory special or regular assessments is or has ever been based in whole or in part on the value at which the state or a local governmental body assesses the property for purposes of ad valorem taxation under Section 20, Article VIII, Texas Constitution.

(d)iiThe county attorney or the district or county official authorized to initiate civil enforcement actions in the county may sue in a court of competent jurisdiction to enjoin or abate a violation of this section by a property owners' association.

SECTIONi__.iiThe amendments to Section 209.009, Property Code, apply to a payment received by a property owners' association on or after the effective date of this Act. A payment received before the effective date of this Act is governed by the law in effect when the payment was received, and the former law is continued in effect for that purpose.

The amendment was read.

POINT OF ORDER

Senator Carona raised a point of order that Floor Amendment No. 12 was not germane to the body of the bill.

POINT OF ORDER WITHDRAWN

Senator Carona withdrew the point of order.

Senator Wentworth withdrew Floor Amendment No.i12.

3398 79th Legislature — Regular Session 78th Day

Senator Carona offered the following amendment to the bill:

Floor Amendment No. 13

Amend CSHB 2120 by adding the following appropriate numbered SECTION and renumbering subsequent SECTIONS of the bill accordingly:

SECTION ___. Chapter 54, Water Code, is amended by adding Subchapter I to read as follows:

SUBCHAPTER I. MUNICIPAL UTILITY DISTRICT ROAD PROJECTS

Sec.i54.771.iiDEFINITION. In this subchapter, "road project" means the construction, acquisition, improvement, maintenance, or operation of macadamized, graveled, or paved roads or turnpikes, or improvements in aid of those roads or turnpikes.

Sec.i54.772.iiAUTHORITY; ELECTION TO PROVIDE POWER TO UNDERTAKE ROAD PROJECTS INSIDE MUNICIPAL UTILITY DISTRICT. (a) A board may order an election to be held in a municipal utility district to determine whether the municipal utility district may undertake road projects inside the municipal utility district.

(b)iiThe ballot for the election must be printed to provide for voting for or against providing the municipal utility district the power to undertake road projects inside the municipal utility district.

(c)iiIf a majority of the persons voting in the election vote in favor of the proposition, the municipal utility district may undertake road projects inside the municipal utility district to the extent authorized by Section 52, Article III, Texas Constitution.

Sec.i54.773.iiBONDS; ELECTION. (a) A municipal utility district may not issue bonds or otherwise lend its credit to finance road projects except on approval of two-thirds or more of the voters of the municipal utility district voting at an election held for that purpose.

(b)iiThe total amount of bonds and other obligations of the municipal utility district issued or incurred to finance road projects may not exceed one-fourth of the assessed valuation of real property in the municipal utility district.

(c)iiThe attorney general may approve under Section 49.184 bonds issued by a municipal utility district to finance road projects as provided by this subchapter only if the municipal utility district meets the requirements of Section 54.774.

Sec.i54.774.iiLIMITATION ON ISSUANCE OF BONDS. (a) A municipal utility district that may undertake road projects under this subchapter may issue bonds to finance road projects only if the combined projected tax rate for the municipal utility district does not exceed $1.50 per $100 of taxable value and the combined no-growth tax rate for the municipal utility district does not exceed $2.50 per $100 of taxable value.

(b)iiIn this section:

(1)ii"Combined no-growth tax rate" means the sum of:

(A)iithe municipal utility district's no-growth debt service tax rate;

(B)iithe no-growth debt service tax rate of all overlapping political subdivisions that is specifically attributable to water, wastewater, drainage, or roads;

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(C)iian equivalent surcharge tax rate for any water or wastewater surcharge paid by the municipal utility district;

(D)iiany municipal tax rate, other than the municipality's debt service tax rate, specifically attributable to water, wastewater, or drainage;

(E)iiany current or proposed maintenance tax rate of the municipal utility district or an overlapping political subdivision; and

(F)iiany contract tax rate, less any equivalent tax rebate or other payment.

(2)ii"Combined projected tax rate" means the sum of:

(A)iithe municipal utility district's projected debt service tax rate;

(B)iithe projected debt service tax rate of all overlapping political subdivisions that is specifically attributable to water, wastewater, drainage, or roads;

(C)iian equivalent surcharge tax rate for any water or wastewater surcharge paid by the municipal utility district;

(D)iiany municipal tax rate, other than the municipality's debt service tax rate, specifically attributable to water, wastewater, or drainage;

(E)iiany current or proposed maintenance tax rate of the municipal utility district or an overlapping political subdivision; and

(F)iiany contract tax rate, less any equivalent tax rebate or other payment.

(3)ii"No-growth debt service tax rate" means a debt service tax rate for future years calculated based on the applicable current taxable valuation.

(4)ii"Projected debt service tax rate" means a debt service tax rate for future years calculated based on the applicable projected taxable valuation for each year.

(c)iiThe calculation of tax rates under this section, other than projected tax rates, must be based on the most recent taxable values certified by the appropriate appraisal district. The calculation of projected tax rates must be based on projected increases in those taxable values.

Sec.i54.775.iiMUNICIPAL OR COUNTY CONSENT AND STANDARDS. (a) A municipal utility district may not undertake a road project unless each municipality in whose corporate limits or extraterritorial jurisdiction the municipal utility district is located consents by ordinance or resolution. If the municipal utility district is located outside the extraterritorial jurisdiction of a municipality, the municipal utility district may not undertake a road project unless each county in which the municipal utility district is located consents by ordinance or resolution.

(b)iiA road project must meet or exceed all applicable construction standards, zoning and subdivision requirements, and regulatory ordinances of each municipality in whose corporate limits or extraterritorial jurisdiction the municipal utility district is located. If the municipal utility district is located outside the extraterritorial jurisdiction of a municipality, a road project must meet or exceed all applicable construction standards, zoning and subdivision requirements, and regulatory ordinances of each county in which the municipal utility district is located.

Sec.i54.776.iiMAINTENANCE OF ROADS. A municipal utility district that may undertake road projects under this subchapter shall maintain all roads constructed or purchased by the municipal utility district unless the county or another political subdivision assumes responsibility for maintaining the roads.

3400 79th Legislature — Regular Session 78th Day

Sec.i54.777.iiCERTAIN AUTHORITY OF TEXAS COMMISSION ON ENVIRONMENTAL QUALITY NOT APPLICABLE. Sections 49.181 and 49.182 do not apply to a road project undertaken by the municipal utility district or to bonds issued by the municipal utility district to finance the project.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 13.

Senator Barrientos offered the following amendment to the bill:

Floor Amendment No. 14

Amend CSHB 2120 by adding the following SECTIONS and renumbering subsequent SECTIONS accordingly:

SECTIONi___.iiSubtitle C, Title 4, Special District Local Laws Code, is amended by adding Chapter 3840 to read as follows:

CHAPTER 3840. BEE CAVE DEVELOPMENT DISTRICT

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i3840.001.iiDEFINITIONS. In this chapter:

(1)ii"Board" means the board of directors of the district.

(2)ii"District" means the Bee Cave Development District.

Sec.i3840.002.iiBEE CAVE DEVELOPMENT DISTRICT. The Bee Cave Development District is a special district created under Section 59, Article XVI, Texas Constitution.

Sec.i3840.003.iiPURPOSE; DECLARATION 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 chapter. By creating the district and in authorizing the Village of Bee Cave, Travis 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.

(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 Village of Bee Cave's business area.

(c)iiThis chapter and the creation of the district may not be interpreted to relieve Travis County or the Village of Bee Cave from providing the level of services provided as of September 1, 2005, to the area in the district or to release the county or village from the obligations of each entity to provide services to that area. The district is created to supplement and not to supplant the county or village services provided in the area in the district.

Sec.i3840.004.iiFINDINGS OF BENEFIT AND PUBLIC PURPOSE. (a)iiThe 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 chapter.

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(c)iiThe creation of the district is in the public interest and is essential to:

(1)iifurther the public purposes of developing and diversifying 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, by providing, operating, and maintaining:

(A)iiattractive, safe, and convenient street and road improvements;

(B)iioff-street parking facilities; and

(C)iinecessary water, sewer, and drainage facilities, including a facility for the improvement of water quality, to serve the district;

(2)iiprovide needed funding for the Village of Bee Cave's business area to:

(A)iipreserve, maintain, and enhance the economic health and vitality of the area as a community and business center; and

(B)iiprovide a government center; and

(3)iipromote the health, safety, welfare, and enjoyment of the public by providing pedestrian ways, parks, and off-street parking, 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, parking, 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.

Sec.i3840.005.iiDISTRICT TERRITORY. (a)iiThe district is composed of the territory described by Section 2 of the Act enacting this chapter.

(b)iiThe boundaries and field notes of the district contained in Section 2 of the Act enacting this chapter 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 the bond;

(3)iiright to impose or collect an assessment or tax; or

(4)iilegality or operation.

(c)iiThe district boundaries may not be changed. Sections 375.043 and 375.044, Local Government Code, and Subchapter J, Chapter 49, Water Code, do not apply to the district.

Sec.i3840.006.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 Village of Bee Cave under Chapter 311, Tax Code;

(2)iia tax abatement reinvestment zone created by the Village of Bee Cave under Chapter 312, Tax Code; or

3402 79th Legislature — Regular Session 78th Day

(3)iian enterprise zone created by the Village of Bee Cave under Chapter 2303, Government Code.

Sec.i3840.007.iiAPPLICABILITY OF MUNICIPAL MANAGEMENT DISTRICTS LAW. Except as otherwise provided by this chapter, Chapter 375, Local Government Code, applies to the district.

Sec.i3840.008.iiLIBERAL CONSTRUCTION OF CHAPTER. This chapter shall be liberally construed in conformity with the findings and purposes stated in this chapter.

[Sections 3840.009-3840.050 reserved for expansion]

SUBCHAPTER B. BOARD OF DIRECTORS

Sec.i3840.051.iiGOVERNING BODY; TERMS. The district is governed by a board of five directors who serve staggered terms of four years, with two or three directors' terms expiring July 1 of each odd-numbered year.

Sec.i3840.052.iiAPPOINTMENT. (a)iiThe governing body of the Village of Bee Cave shall appoint directors as provided by Subchapter D, Chapter 375, Local Government Code, except that to be qualified to serve as a director, a person must be at least 18 years of age and:

(1)iia resident of the Village of Bee Cave;

(2)iian owner of property in the district;

(3)iian owner of stock, whether beneficial or otherwise, of a corporate owner of property in the district;

(4)iian owner of a beneficial interest in a trust that owns property in the district; or

(5)iian agent, employee, or tenant of a person described by Subdivision (2), (3), or (4).

(b)iiSections 375.063 and 375.064(a)-(c) and (e), Local Government Code, do not apply to the district.

Sec.i3840.053.iiVACANCY. (a)iiThe governing body of the Village of Bee Cave shall appoint a person to fill a board vacancy in the same manner as an original appointment.

(b)iiSection 375.066, Local Government Code, does not apply to the district.

Sec.i3840.054.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;

(2)iiall other similar business or charitable entities in the district will receive a similar pecuniary benefit; or

(3)iithe director owns property in the district.

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(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.

[Sections 3840.055-3840.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES

Sec.i3840.101.iiNONPROFIT CORPORATION. (a)iiThe board by resolution may, with the consent of the Village of Bee Cave, authorize the creation of a nonprofit corporation to assist and act for the district in implementing a project or providing a service authorized by this chapter.

(b)iiThe nonprofit corporation:

(1)iihas each power of and is considered for purposes of this chapter 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 chapter.

(c)iiThe board shall appoint the board of directors of the 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.

Sec.i3840.102.iiAGREEMENTS; GRANTS; DONATIONS. (a)iiThe district may enter into an agreement with or accept a donation, grant, or loan from any person.

(b)iiA municipality, county, or other political subdivision of this state, without further authorization, may contract with the district for:

(1)iithe acquisition, construction, improvement, implementation, maintenance, and operation of a district project; or

(2)iithe provision of a service authorized under this chapter.

(c)iiA contract under Subsection (b) may:

(1)iibe for a period and include terms on which the parties agree;

(2)iibe payable from taxes or any other source of revenue that may be available for that purpose; and

(3)iiprovide terms under which taxes or other revenues collected at a district project or from a person using or purchasing a commodity or service at a district project may be paid or rebated to the district.

(d)iiThe implementation of a project is a governmental function or service for the purposes of Chapter 791, Government Code.

Sec.i3840.103.iiAUTHORITY TO CONTRACT FOR LAW ENFORCEMENT. To protect the public interest, the district may contract with the Village of Bee Cave for the village to provide law enforcement services in the district for a fee.

Sec.i3840.104.iiAPPROVAL OF CERTAIN IMPROVEMENT PROJECTS. (a)iiExcept as provided by Subsection (b), the district must obtain the approval of the Village of Bee Cave's governing body:

(1)iifor the issuance of a bond for each improvement project;

(2)iiof the plans and specifications of an improvement project financed by the bond; and

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(3)iiof the plans and specifications of any district improvement project related to the use of land owned by the Village of Bee Cave, an easement granted by the Village of Bee Cave, or a right-of-way of a street, road, or highway.

(b)iiIf the district obtains the approval of the Village of Bee Cave's governing body of a capital improvements budget for a period not to exceed five years, the district may finance the capital improvements and issue bonds specified in the budget without further approval of the Village of Bee Cave.

Sec.i3840.105.iiNO EMINENT DOMAIN. The district may not exercise the power of eminent domain.

Sec.i3840.106.iiHOTEL CONSTRUCTION PROHIBITED. (a)iiIn this section, "hotel" has the meaning assigned by Section 156.001, Tax Code.

(b)iiThe district may not build a hotel or finance or construct a facility or other improvement to enhance or benefit a hotel in the district. A hotel may not be connected to or use a facility or other improvement financed or constructed by the district.

[Sections 3840.107-3840.150 reserved for expansion]

SUBCHAPTER D. FINANCIAL PROVISIONS

Sec.i3840.151.iiDISBURSEMENTS AND 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.

Sec.i3840.152.iiPETITION REQUIRED FOR FINANCING SERVICES AND IMPROVEMENTS WITH ASSESSMENTS. (a)iiThe board may not finance a service or improvement project under this chapter unless a written petition requesting that service or improvement has been filed with the board.

(b)iiA petition filed under Subsection (a) must be signed by:

(1)iithe owners of a majority of the assessed value of real property in the district subject to assessment according to the most recent certified tax appraisal roll for Travis County; or

(2)iiat least 25 owners of land in the district, if more than 25 persons own land in the district according to the most recent certified property tax appraisal roll for Travis County.

Sec.i3840.153.iiAUTHORITY TO IMPOSE AD VALOREM TAXES, ASSESSMENTS, AND IMPACT FEES. (a)iiThe district may impose an ad valorem tax, assessment, or impact fee as provided by Chapter 375, Local Government Code, on all property in the district, including industrial, commercial, or residential property, to:

(1)iifinance or provide an improvement or service for a project or activity this chapter authorizes the district to construct, acquire, or improve; or

(2)iiprovide or to make a payment under a contract.

(b)iiThis section does not apply to property owned by a municipality.

Sec.i3840.154.iiASSESSMENTS. (a)iiThe board by resolution may impose and collect an assessment for any purpose authorized by this chapter.

(b)iiThe district may not impose an assessment against any property of the Village of Bee Cave in the district. Payment of an assessment by another exempt jurisdiction must be established by contract.

Wednesday, May 25, 2005 SENATE JOURNAL 3405

(c)iiThe board may apportion the cost of an improvement project or service to be assessed against property in the district on all property in the district according to a finding of the board that the improvement project or service benefits all property in the district.

(d)iiThe board may include two or more types of improvements and services in one assessment proceeding. The board may conduct separate assessment proceedings as the district undertakes improvement projects or the provision of services.

(e)iiThe board may adjust annual assessments for services in accordance with an annual budget the board adopts for the provision of those services. An annual adjustment may not exceed the annual amount set forth in the original assessment proceedings except after public notice and hearing on the increase.

(f)iiThe board, after notice and hearing as provided by Subchapter F, Chapter 375, Local Government Code, may:

(1)iicorrect, add to, or delete assessments from its assessment rolls; and

(2)iicollect assessments after making the corrections, additions, or deletions.

Sec.i3840.155.iiLIENS FOR ASSESSMENTS. (a)iiAn assessment, including an assessment resulting from an addition to or correction of the assessment roll by the district, a reassessment, 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 a charge against the owners of the property even if the owners are not named in the assessment proceeding.

(b)iiThe lien is effective from the date of the board's resolution 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.

Sec.i3840.156.iiAD VALOREM TAX. (a)iiIf authorized at an election held in accordance with Section 3840.160, the district may impose an annual ad valorem tax on taxable property in the district for any district purpose, including to:

(1)iimaintain and operate the district;

(2)iiconstruct or acquire improvements; or

(3)iiprovide a service.

(b)iiThe board shall determine the tax rate.

Sec.i3840.157.iiCONTRACTS SECURED BY AD VALOREM TAXES. A contract for which the payments are secured wholly or partly by ad valorem taxes may not be executed unless the imposition of the ad valorem taxes to secure the payment of the contract is approved by a majority, or a larger percentage if constitutionally required, of the voters in the district voting at an election held for that purpose.

Sec.i3840.158.iiUTILITY PROPERTY EXEMPT FROM IMPACT FEES AND ASSESSMENTS. The district may not impose an impact fee or assessment on the property of a person that provides gas, electricity, telephone, sewage, or water service to the public.

3406 79th Legislature — Regular Session 78th Day

Sec.i3840.159.iiBONDS AND OTHER OBLIGATIONS. (a)iiThe district may issue bonds or other obligations payable wholly or partly from 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)iiThe 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.

Sec.i3840.160.iiTAX AND BOND ELECTIONS. (a)iiExcept as provided by Subsection (c), 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 or assessments.

(b)iiThe board may include more than one purpose in a single proposition at an election.

(c)iiIf the district obtains the written consent of all property owners in the district to impose a maintenance tax or issue bonds payable from ad valorem taxes or assessments, the district is exempt from the election requirement under Subsection (a) and may cancel an election called under Subsection (a).

Sec.i3840.161.iiMUNICIPALITIES 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.

Sec.i3840.162.iiCOMPETITIVE BIDDING. Section 375.221, Local Government Code, applies to the district only for a contract that has a value greater than $25,000.

[Sections 3840.163-3840.200 reserved for expansion]

SUBCHAPTER E. DISSOLUTION

Sec.i3840.201.iiDISSOLUTION OF DISTRICT WITH OUTSTANDING DEBT. (a)iiThe board may dissolve the district regardless of whether the district has debt. Section 375.264, Local Government Code, does not apply to the district.

(b)iiIf the district has debt when it is dissolved, the district shall remain in existence solely for the purpose of discharging its debts. The dissolution is effective when all debts have been discharged.

[Sections 3840.202-3840.250 reserved for expansion]

SUBCHAPTER F. ENFORCEMENT POWERS

Sec.i3840.251.iiINJUNCTIVE RELIEF. (a)iiIf it appears that a person or the district has violated or is violating or threatening to violate this chapter or a rule, permit, or other order of the district issued or adopted under this chapter, a resident of the Village of Bee Cave may institute an action in a district court for injunctive relief to restrain the person or the district from continuing the violation or threat of violation.

(b)iiOn application for injunctive relief and a finding that a person or the district is violating or threatening to violate this chapter or a rule, permit, or other order of the district under this chapter, the district court shall grant injunctive relief as the facts warrant.

(c)iiVenue for an action seeking injunctive relief is in a district court in Travis County.

Wednesday, May 25, 2005 SENATE JOURNAL 3407

SECTIONi___.iiAs of the effective date of this Act, the Bee Cave Development District includes all territory contained in the following described area:

BEING A 156.088 ACRE TRACT LOCATED IN THE A. ZILLER SURVEY NUMBER 2 ABSTRACT 2529, THE JAS. G. SWISHER SURVEY NUMBER 152 ABSTRACT NUMBER 691, THE WILLIAM P. MOORE SURVEY NUMBER 525 ABSTRACT NUMBER 557, THE ORRAN WADE SURVEY NUMBER 540 ABSTRACT NUMBER 811, AND THE JOHN HOBSON SURVEY NUMBER 527 ABSTRACT NUMBER 387, TRAVIS COUNTY, TEXAS, AND BEING ALL OF A 31.9094 ACRE TRACT DESCRIBED IN A DEED TO TECHNOLOGY PROPERTIES, INC. AND RECORDED IN VOLUME 12101, PAGE 1883, REAL PROPERTY RECORDS, TRAVIS COUNTY, TEXAS, ALSO BEING ALL OF A 3.662 ACRE TRACT, THE REMAINDER OF A 66.47 ACRE TRACT, THE REMAINDER OF A 45.760 ACRE TRACT, AND ALL OF A 1.633 ACRE TRACT, ALL BEING CONVEYED TO BALDWIN PROPERTIES, LTD. AND DESCRIBED IN DOCUMENT NUMBER 2003036917, OF THE OFFICIAL PUBLIC RECORDS, TRAVIS COUNTY, TEXAS, ALSO BEING ALL OF THE REMAINDER OF BEE CAVES COMMONS, A SUBDIVISION OF RECORD IN VOLUME 88, PAGE 325, OF THE PLAT RECORDS, TRAVIS COUNTY, TEXAS, ALSO BEING A PORTION OF A 6.009 ACRE TRACT CONVEYED TO WILLIAM J. MADDOX, AND DESCRIBED IN DOCUMENT NUMBER 1999022498, OFFICIAL PUBLIC RECORDS, TRAVIS COUNTY, TEXAS, ALSO BEING A PORTION OF A 5.5 ACRE TRACT CONVEYED TO HIGHLAND HILLS VFW, AND DESCRIBED IN VOLUME 8218, PAGE 501, DEED RECORDS, TRAVIS COUNTY, TEXAS, ALSO BEING A PORTION OF A 3.92 ACRE TRACT CONVEYED TO R.C. AND J. PURYEAR, AND DESCRIBED IN VOLUME 11960, PAGE 211, REAL PROPERTY RECORDS, TRAVIS COUNTY, TEXAS, AND ALSO BEING A PORTION OF TROUBLEMAKER SECTION ONE, A SUBDIVISION OF RECORD IN VOLUME 103, PAGE 74, PLAT RECORDS, TRAVIS COUNTY, TEXAS. SAID 156.088 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:

BEGINNING at a 1/2 inch iron rod found in the north right-of-way (ROW) line of Bee Caves Road (R.M. 2244), (ROW varies), same being the southeast corner of said 66.47 acre tract, also being the southwest corner of Bee Caves Plaza, Section Two, a subdivision of record in Document Number 199900247, Official Public Records, Travis County, Texas, for the southeast corner of this tract and the POINT OF BEGINNING;

THENCE with the north ROW line of said Bee Caves Road, same being the south line of said 66.47 acre tract the following four (4) courses and distances:

1.iiS89830'01"W, a distance of 80.15 feet to a TXDOT concrete monument found,

2.iiS89849'16"W, a distance of 62.18 feet to a TXDOT concrete monument found,

3.iiS80834'19"W, a distance of 185.07 feet to a 1/2 inch iron rod with plastic cap found, and

3408 79th Legislature — Regular Session 78th Day

4.iiN89843'33"W, a distance of 25.52 feet to a TXDOT brass disk in concrete found at the intersection of the north ROW line of said Bee Caves Road and the north ROW line of State Highway 71 (ROW varies), same being a south corner of said 66.47 acre tract

THENCE with the north ROW line of said State Highway 71, same being the south line of said 66.47 acre tract, N66838'55"W, a distance of 220.65 feet to a calculated point for a south corner of said 66.47 acre tract, same being the southeast corner of The Village at Bee Caves, Phase 1, a subdivision of record in Volume 100, Page 268, Plat Records, Travis County, Texas, also being a point in the north ROW line of said State Highway 71.

THENCE leaving said ROW line and with the east, north, and west lines of said Village at Bee Caves subdivision, same being the south line of said 66.47 acre tract the following three (3) courses and distances:

1.iiN23821'07"E, a distance of 261.28 feet to a 1/2 inch iron rod found,

2.iiN66837'43"W, a distance of 179.91 feet to a 1/2 inch iron rod found, and

3.iiS23821'07"W, a distance of 261.34 feet to a 1/2 inch iron rod with plastic "VARA" cap found in the north ROW line of said State Highway 71, same being the southwest corner of said Village at Bee Caves subdivision, also being a south corner of said 66.47 acre tract.

THENCE with the north ROW line of said State Highway 71, same being the south line of said 66.47 acre tract, the south line of said Bee Caves Commons, and said 45.760 acre tract, the following eight (8) courses and distances:

1.iiN66838'55"W, a distance of 606.82 feet to a TXDOT brass disk in concrete found,

2.iiN35838'36"W, a distance of 38.26 feet to a TXDOT brass disk in concrete found,

3.iiN66840'51"W, a distance of 328.08 feet to a TXDOT brass disk in concrete found,

4.iiN49847'50"W, a distance of 102.78 feet to a TXDOT brass disk in concrete found,

5.iiN66840'13"W, a distance of 459.16 feet to a TXDOT brass disk in concrete found,

6.iiN77851'51"W, a distance of 100.61 feet to a TXDOT brass disk in concrete found,

7.iiN66839'08"W, a distance of 426.63 feet to a TXDOT brass disk in concrete found, and

8.iiN77808'12"W, a distance of 253.20 feet to a 1/2 inch iron rod found in the east property line of Lot 15, of the Glass-Bohls Subdivision, a subdivision of record in Volume 90, Page 274, Plat Records, Travis County, Texas, same being a southwest corner of said 45.760 acre tract, also being a corner in the north ROW line of said State Highway 71.

THENCE leaving said ROW line and with the east line of said Lot 15, same being a west line of said 45.760 acre tract, N13822'57"E, a distance of 209.67 feet to a 1/2 inch iron rod found for the northeast corner of said Glass-Bohls Subdivision, same being the south east corner of a 42.929 acre (Remainder) tract conveyed to

Wednesday, May 25, 2005 SENATE JOURNAL 3409

THENCE with the east, north, and west lines of the said 42.929 acre (Remainder) tract, same being south lines of said 45.760 acre tract, the following three (3) courses and distances:

1.iiN13822'11"E, a distance of 141.56 feet to a 1/2 inch iron rod with plastic "VARA" cap found,

2.iiN76835'16"W, a distance of 247.99 feet to a 1/2 inch iron rod found, and

3.iiS13836'24"W, a distance of 141.65 feet to a 1/2 inch iron rod found for the southwest corner of said 42.929 acre (Remainder) tract, same being the northwest corner of said Lot 15, also being a point in an east line of said 45.760 acre tract.

THENCE with the east line of said 45.760 acre tract, same being the west line of said Lot 15, S13827'17"W, a distance of 174.90 feet to a 1 inch iron pipe found in the east ROW line of R.M. 620, (ROW varies), same being the southwest corner of said Lot 15, also being a south corner of said 45.760 acre tract.

THENCE with the east ROW line of said R.M. 620, same being a south line of said 45.760 acre tract, N54832'05"W, a distance of 19.86 feet to a 1 inch iron pipe found in the west ROW line of said R.M. 620, same being the southeast corner of a 0.85 acre tract conveyed to Ethel Hudson Thurman, and described in Volume 2876, Page 554, Deed Records, Travis County, Texas, also being a south corner of said 45.760 acre tract.

THENCE with the west line of the said 45.760 acre tract, same being the east line of said 0.85 acre tract and the east and north lines of a 1.24 acre tract conveyed to Shirley Thurman Grumbles, and described in Volume 13323, Page 1016, Real Property Records, Travis County, Texas, N13814'26"E, a distance of 418.29 feet to a 1/2 inch iron rod found, for the northeast corner of said 1.24 acre tract, same being the southeast corner of said 1.633 acre tract, also being in the east line of said 45.760 acre tract.

THENCE with the south line of the said 1.633 acre tract, same being the north lines of said 1.24 acre tract, N66847'02"W, a distance of 353.33 feet to a 1/2 inch iron rod found in the east ROW line of said R.M. 620, same being the northwest corner of said 1.24 acre tract, also being the southwest corner of said 1.633 acre tract.

THENCE with the east ROW line of said R.M. 620, same being the west line of said 1.633 acre tract and said 45.760 acre tract, the following three (3) courses and distances:

1.iiN15835'09"W, a distance of 264.34 feet to a TXDOT brass disk in concrete found,

2.iiN19846'35"W, a distance of 53.60 feet to a 3/4 inch iron pipe found, and

3.iiN19820'10"W, a distance of 38.61 feet to a 3/4 inch iron pipe found in the east ROW line of said R.M. 620, same being a west corner of said 45.760 acre tract, also being an east corner of the Travis County Subdivision No. Two, a subdivision of record in Volume 100, Page 268, Plat Records, Travis County, Texas.

3410 79th Legislature — Regular Session 78th Day

THENCE with the south, east, and north lines of said Travis County Subdivision No. Two, same being west lines of said 45.760 acre tract, the following five (5) courses and distances:

1.iiN56811'48"E, a distance of 8.13 feet to a 3/4 inch iron pipe found,

2.iiS32851'32"E, a distance of 10.01 feet to a 1/2 inch iron rod found,

3.iiS47820'00"E, a distance of 106.22 feet to a 1/2 inch iron rod found,

4.iiN21850'40"E, a distance of 582.01 feet to a 1/2 inch iron rod found, and

5.iiN60839'51"W, a distance of 359.35 feet to calculated point in the east line of said 6.009 acre tract, same being the northwest corner of said Travis County Subdivision No. Two, also being the west corner of said 45.760 acre tract.

THENCE with the west line of said Travis County Subdivision No. Two, same being the east line of said 6.009 acre tract, the following two (2) courses and distances:

1.iiS37813'35"W, a distance of 42.91 feet to a 1/2 inch iron rod found, and

2.iiS46805'26"W, a distance of 265.76 feet to a 1/2 inch iron rod found in the northeast ROW line of said R.M. 620, same being the west corner of said Travis County Subdivision No. Two, also being the southeast corner of said 6.009 acre tract.

THENCE with the north ROW line of said R.M. 620, same being the south line of said 6.009 acre tract, N40802'34"W, a distance of 60.40 feet to a 1/2 inch iron rod found in the north ROW line of said R.M. 620, same being the southwest corner of said 6.009 acre tract, also being the southeast corner of the remainder of said 5.5 acre tract.

THENCE with the east line of the remainder of said 5.5 acre tract, same being the west line of said 6.009 acre tract, N44853'05"E, a distance of 298.91 feet to a calculated point for a west corner of said 6.009 acre tract, same being a west corner of the remainder of said 5.5 acre tract.

THENCE leaving said common line and crossing said 6.009 acre tract, said 45.760 acre tract, said 5.5 acre tract, and said 3.92 acre tract, the following three (3) courses and distances:

1.iiN60842'58"E, a distance of 367.90 feet to a calculated point,

2.iiN29817'47"W, a distance of 532.97 feet to a calculated point, and

3.iiS32843'50"W, a distance of 85.11 feet to a 1 inch iron rod in concrete found in the south line of said 3.92 acre tract, same being the northwest corner of said 5.5 acre tract, also being the east corner of a 6.947 acre tract conveyed to Duane James Terry, and described in Volume 12657, Page 1860, Real Property Records, Travis County, Texas.

THENCE with the south and west lines of said 3.92 acre tract, same being the north lines of said 6.947 acre tract, the following two (2) courses and distances:

1.iiN62810'44"W, a distance of 237.62 feet to a 1/2 inch iron rod found, and

2.iiN02807'31"E, a distance of 189.38 feet to a 1 inch iron rod in concrete found for a south corner of said Troublemaker subdivision, same being the northwest corner of said 3.92 acre tract, also being the northeast corner of said 6.947 acre tract.

THENCE with the south line of said Troublemaker tract, same being the north line of said 3.92 acre tract, S77805'56"E, a distance of 123.37 feet to a calculated point in said common line.

Wednesday, May 25, 2005 SENATE JOURNAL 3411

THENCE leaving said common line and crossing said Troublemaker tract the following two (2) courses and distances:

1.iiWith the arc of a curve to the left a distance of 1083.76 feet, through a central angle of 65842'33", having a radius of 945.00 feet, and whose chord bears N72804'04"W, a distance of 1025.34 feet to a calculated point, and

2.iiS75804'40"W, a distance of 31.40 feet to a calculated point in the west line of said Troublemaker tract, same being the east line of said R.M. 620.

THENCE with the east ROW line of said R.M. 620, same being the west line of said Troublemaker tract, the following two (2) courses and distances:

1.iiN18804'22"W, a distance of 272.77 feet to a TXDOT type II monument found, and

2.iiWith the arc of a curve to the left a distance of 240.18 feet, through a central angle of 10812'24", having a radius of 1348.24 feet, and whose chord bears N20832'19"W, a distance of 239.86 feet to a calculated point in said ROW line, same being the northwest corner of said Troublemaker tract, also being the southwest corner of an 819.739 acre tract conveyed to the City of Austin and described in Volume 12124, Page 143, Real Property Records, Travis County, Texas.

THENCE with the north line of said Troublemaker tract, same being the south line of said 819.739 acre tract, N88845'35"E, a distance of 190 feet to a calculated point in said common line.

THENCE leaving said common line and crossing said Troublemaker tract the following three (3) courses and distances:

1.iiS09831'59"W, a distance of 208.34 feet to a calculated point,

2.iiS18804'22"E, a distance of 167.41 feet to a calculated point, and

3.iiWith the arc of a curve to the right a distance of 1303.65 feet, through a central angle of 70847'59", having a radius of 1055.00 feet, and whose chord bears S67828'29"E, a distance of 1222.28 feet to a calculated point in the south line of said Troublemaker tract, same being the north line of said 3.92 acre tract.

THENCE with the north line of said 3.92 acre tract, same being the south line of said Troublemaker tract, S77802'56"E, a distance of 230.18 feet to a cotton spindle found for the southeast corner of said Troublemaker tract, same being a southwest corner of said 819.739 acre tract, also being a point in the north line of said 3.92 acre tract.

THENCE with the north line of said 3.92 acre tract, same being a south line of said 819.739 acre tract, S77822'13"E, a distance of 164.44 feet to a 1/2 inch iron rod found for the northeast corner of said 3.92 acre tract, same being a point in the south line of said 819.739 acre tract, also being the northwest corner of said 6.009 acre tract.

THENCE with the north line of said 6.009 acre tract, same being a south line of said 819.739 acre tract, S76846'31"E, a distance of 276.72 feet to a calculated point in said common line.

THENCE leaving said common line and crossing said 3.92 acre tract and said 6.009 acre tract the following seven (7) courses and distances:

1.iiS63822'07"W, a distance of 143.52 feet to a calculated point,

2.iiN70803'44"W, a distance of 137.19 feet to a calculated point,

3412 79th Legislature — Regular Session 78th Day

3.iiS59802'55"W, a distance of 262.60 feet to a calculated point,

4.iiS29817'47"E, a distance of 196.22 feet to a calculated point,

5.iiN60842'13"E, a distance of 120.12 feet to a calculated point,

6.iiS49844'17"E, a distance of 85.54 feet to a calculated point, and

7.iiS29817'47"E, a distance of 175.95 feet to a calculated point in the south line of said 6.009 acre tract, same being a north line of said 45.760 acre tract.

THENCE with the south line of said 6.009 acre tract, same being the north line of said 45.760 acre tract, S77806'32"E, a distance of 146.00 feet to a 3/4 inch iron pipe found for an east corner of said 6.009 acre tract, same being a point in the west line of a 462.4037 acre tract conveyed to the City of Austin and described in Volume 12396, Page 1204, Real Property Records, Travis County, Texas.

THENCE with the east and north lines of said 45.760 acre tract and said 66.47 acre tract, same being the west and south lines of said 462.4037 acre tract and a 12.268 acre tract conveyed to the L.C.R.A. and described in Document Number 2001056302, Official Public Records, Travis County, Texas, the following two (2) courses and distances:

1.iiS12835'44"W, a distance of 327.14 feet to a 3/4 inch iron pipe found, and

2.iiS70813'01"E, a distance of 1884.98 feet to a 1/2 inch iron rod with plastic cap found, for a southeast corner of said 462.4037 acre tract, same being the west corner of said 3.662 acre tract, also being a point in the north line of said 66.47 acre tract.

THENCE with the common line of said 3.662 acre tract and said 462.4037 acre tract the following five (5) courses and distances:

1.iiN61800'54"E, a distance of 196.44 feet to a 1/2 inch iron rod with plastic cap found,

2.iiN87833'49"E, a distance of 433.24 feet to a 1/2 inch iron rod found,

3.iiN65819'12"E, a distance of 38.74 feet to a 1/2 inch iron rod found,

4.iiN87843'36"E, a distance of 647.80 feet to a 1/2 inch iron rod found, and

5.iiN45810'09"E, a distance of 75.12 feet to a 1/2 inch iron rod found for the southeast corner of said 462.4037 acre tract, same being a point in the southwest line of Lake Pointe Phase II, a subdivision of record in Volume 97, Page 84, Plat Records, Travis County, Texas, also being the northeast corner of said 3.662 acre tract.

THENCE with the east lines of said 3.662 acre tract and said 31.9094 acre tract, same being the southwest line of said Lake Pointe subdivision, S41811'34"E, a distance of 1845.56 feet to a 1/2 inch iron rod found, in the curving north ROW line of said Bee Caves Road, same being the east corner of said 31.9094 acre tract, also being the south corner of said Lake Pointe subdivision.

THENCE with the south line of said 31.9094 acre tract, same being the north ROW line of said Bee Caves Road the following two (2) courses and distances:

1.iiWith the arc of a curve to the left a distance of 56.87 feet, through a central angle of 1838'15", having a radius of 1989.93 feet, and whose chord bears S54832'32"W, a distance of 56.87 feet to a calculated point, from which a TXDOT type II monument found bears, S53843'25"W, a distance of 0.21 feet, and

Wednesday, May 25, 2005 SENATE JOURNAL 3413

2.iiS53843'07"W, a distance of 808.02 feet to a 5/8 inch iron rod found in the north ROW line of said Bee Caves Road, same being the south corner of said 31.9094 acre tract, also being the southeast corner of Lot 2, of Bee Caves Plaza Section One, a subdivision of record in Volume 97, Page 106, Plat Records, Travis County, Texas.

THENCE leaving said ROW line and with the east line of said Lot 2, same being a west line of said 31.9094 acre tract, N18813'50"W, at an approximate distance of 308 feet passing the northeast corner of said Lot 2, same being the southeast corner of a 4.84 acre tract conveyed to Ted L. Stewart, Trustee, and described in Volume 13047, Page 244, Real Property Records, Travis County, Texas, thence continuing with the west line of said 31.9094 acre tract same being the east line of said 4.84 acre tract, for a total distance of 1027.22 feet to a 1/2 inch iron rod found.

THENCE continuing with said common line, N44829'59"W, a distance of 147.70 feet to a 1/2 inch iron rod with plastic "VARA" cap found for a common corner.

THENCE continuing with said common line, S89840'20"W, at an approximate distance of 169 feet passing the northwest corner of said 4.84 acre tract, same being the northeast corner of Lot 1, of said Bee Caves Plaza Section One, thence continuing with a south line of said 31.9094 acre tract, same being the north line of said Lot 1, at an approximate distance of 346 feet passing the northwest corner of said Lot 1, same being the northeast corner of Bee Caves Plaza Section Three, a subdivision of record in Volume 101, Page 92, Plat Records, Travis County, Texas, thence continuing with the north line of said Bee Caves Plaza Section Three, same being a south line of said 31.9094 acre tract, a total distance of 657.81 feet to a 1/2 inch iron rod found in the east line of said 66.47 acre tract, same being the southwest corner of said 31.9094 acre tract, also being the northeast corner of said Bee Caves Plaza Section Three.

THENCE with east line of said 66.47 acre tract, same being the west lines of said Bee Caves Plaza Section Three, a 7.69 acre tract conveyed to Ted L. Stewart, Trustee, and described in Volume 13047, Page 244, Real Property Records, Travis County, Texas, and said Bee Caves Plaza Section Two, S10817'49"E, a distance of 1295.56 feet to the POINT OF BEGINNING and containing 156.088 acres of land, more or less.

SECTIONi___.iiNot later than January 1, 2006, the governing body of the Village of Bee Cave shall appoint the initial board of directors for the Bee Cave Development District under Section 3840.052, Special District Local Laws Code, as added by this Act. The governing body shall stagger the initial directors' terms so that three terms expire July 1, 2007, and two terms expire July 1, 2009.

SECTIONi___.iiThe 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;

3414 79th Legislature — Regular Session 78th Day

(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.

SECTIONi___.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, 2005.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 14.

Senator Lindsay offered the following amendment to the bill:

Floor Amendment No. 15

Amend CSHB 2120 by adding the following appropriately numbered SECTION and renumbering the following SECTIONS of the bill accordingly:

SECTIONi__.iiSection 25.1032, Government Code, is amended by adding Subsection (m) to read as follows:

(m)iiIf the judge of a county civil court at law in Harris County is disqualified or recused from a case pending before the court, the judge of another county civil court at law in Harris County shall be assigned to sit for the regular judge and hear the case. If another county civil court judge for Harris County is not available or is unable to hear the case because of a disqualification or recusal, the presiding judge of the administrative judicial region shall appoint as a visting judge:

(1)iia retired judge who served as the judge for a county or district court in Harris County; or

(2)iiif a judge described by Subdivision (1) is not available for the assignment, a former, retired, or active judge from another county.

SECTIONi__.iiThe changes in law made by this Act to Section 25.1032, Government Code, apply only to the assignment of a judge under that section on or after the effective date of this Act.

The amendment to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 15.

Senator Shapleigh again offered the following amendment to the bill:

Floor Amendment No. 5

Amend CSHB 2120, by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill accordingly:

Wednesday, May 25, 2005 SENATE JOURNAL 3415

SECTIONi__.iiSection 172.015, Local Government Code, is amended to read as follows:

Sec. 172.015. SUBROGATION; ADEQUATE RECOVERY. (a) The payor of employee benefits, whether a political subdivision, group of political subdivisions, pool, or carrier providing reinsurance to one of those entitites, is [shall be] subrogated to the employees' right of recovery for personal injuries caused by the tortuous conduct of a third party.

(b)iiA payor of employee benefits whose interest is not actively represented by an attorney in a third-party action shall pay a fee to an attorney representing the claimant employee in an amount determined under an agreement entered into between the attorney and the payor of employee benefits. In the absence of an agreement, the court shall award to the attorney, payable out of the recovery of the payor of employee benefits:

(1)iia reasonable fee for recovery of the interest of the payor of employee benefits, not to exceed one-third of the payor's recovery; and

(1)iia proportionate share of expenses.

(c)iiIf the injured employee is not able to realize a complete and adequate recovery for injuries sustained as a result of the actionable fault of a third party, the payor of employee benefits is entitled to a pro rata recovery consistent with the recovery obtained by the injured employee.

SECTIONi__.iiSection 172.015, Local Government Code, as amended by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. An action that accrued before the effective date of this Act is governed by the law applicable to the action immediately before the effective date of this Act, and that law is continued in effect for that purpose.

The amendment to CSHB 2120 was again read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 5 except as follows:

Nays:iiHarris.

Senator Gallegos again offered the following amendment to the bill:

Floor Amendment No. 8

Amend CSHB 2120 by adding the following appropriately numbered SECTION to the bill and renumbering the subsequent SECTIONs accordingly:

SECTIONi___.iiSubtitle B, Title 11, Local Government Code, is amended by adding Chapter 353 to read as follows:

CHAPTER 353. COUNTY HAZARDOUS MATERIALS SERVICES

Sec.i353.001.iiDEFINITIONS. In this chapter:

(1)ii"Concerned party" means a person:

(A)iiinvolved in the possession, ownership, or transportation of a hazardous material that is released or abandoned; or

(B)iiwho has legal liability for the causation of an incident resulting in the release or abandonment of a hazardous material.

3416 79th Legislature — Regular Session 78th Day

(2)ii"Hazardous material" means a flammable material, an explosive, a radioactive material, a hazardous waste, a toxic substance, or related material, including a substance defined as a "hazardous substance," "hazardous material," "toxic substance," or "solid waste" under:

(A)iithe federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.);

(B)iithe federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.);

(C)iithe federal Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.);

(D)iithe federal Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.); or

(E)iiChapter 361, Health and Safety Code.

Sec.i353.002.iiAPPLICABILITY. This chapter applies to an incident involving hazardous material that has been leaked, spilled, released, or abandoned on any property.

Sec.i353.003.iiHAZARDOUS MATERIALS SERVICES. (a) A county may provide hazardous materials services, including a response to an incident involving hazardous material that has been leaked, spilled, released, or abandoned, if:

(1)iithe county first provides reasonable notice to a concerned party regarding the need for the hazardous materials services so that the concerned party has a reasonable opportunity to respond to the incident involving hazardous material; and

(2)iithe concerned party fails to respond or fails to respond in a timely and effective manner to the incident.

(b)iiA county may provide limited control and containment measures that are necessary to protect human health and the environment without first complying with the requirements of Subsection (a) if the county is the first entity to arrive at a site where an incident involving hazardous material has occurred that is prepared to take action in response to the incident.

(c)iiIf the hazardous material is natural gas released from an underground facility as defined by Section 251.002, Utilities Code, the county:

(1)iimust comply with the requirements of Section 251.159, Utilities Code; and

(2)iimay not operate any equipment or other controls or devices at the underground facility without the express permission of the operator of the facility.

Sec.i353.004.iiFEE FOR PROVIDING HAZARDOUS MATERIALS SERVICE; EXCEPTION. (a) A county, or a person authorized by contract on the county's behalf, may charge a reasonable fee, including a fee to offset the cost of providing control and containment measures under Section 353.003(b), to a concerned party for responding to a hazardous materials service call.

(b)iiA county, or a person authorized by contract on the county's behalf, may charge a fee for providing hazardous materials services under Section 353.003(a) only if the county has complied with the requirements of that subsection. A concerned party is not liable for a fee associated with the county's hazardous materials services under Section 353.003(a) or a fee to offset the cost of providing control and

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(c)iiAn individual who is a concerned party does not have to pay a fee under this section if:

(1)iithe individual is not involved in the possession, ownership, or transportation of the hazardous material as the employee, agent, or servant of another person;

(2)iithe individual is involved solely for private, noncommercial purposes related to the individual's own property and the individual receives no compensation for any services involving the hazardous materials; and

(3)iithe hazardous materials possessed, owned, or being transported by the individual are in forms, quantities, and containers ordinarily available for sale as consumer products to members of the general public.

Sec.i353.005.iiEXEMPTION FOR GOVERNMENTAL ENTITIES. This chapter does not apply to hazardous materials owned or possessed by a governmental entity.

The amendment was again read.

Senator Gallegos offered the following amendment to Floor Amendment No. 8:

Floor Amendment No. 16

Amend Floor Amendment No. 8 to CSHB 2120 as follows:

On page 2, between lines 28-29, insert the following new Subsection (d), Section 353.003, Local Government Code:

(d)iiIn relation to any hazardous material for which the county may provide hazardous material services under this chapter, a person who caused, suffered, allowed, or permitted the hazardous material to be leaked, spilled, released or abandoned is liable for the reasonable costs, damages, or expenses that are or have been incurred by the county or third party for the management, handling, storage, and disposal of the material.

The amendment to Floor Amendment No. 8 to CSHB 2120 was read and was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 16.

Question recurring on the adoption of Floor Amendment No.i8 to CSHBi2120, the amendment as amended was adopted by a viva voce vote.

All Members are deemed to have voted "Yea" on the adoption of Floor Amendment No. 8 as amended.

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

CSHB 2120 as amended was passed to third reading by a viva voce vote.

All Members are deemed to have voted "Yea" on the passage to third reading.

3418 79th Legislature — Regular Session 78th Day

COMMITTEEiiSUBSTITUTE
HOUSE BILL 2120 ON THIRD READING

Senator Lindsay moved that Senate Rule 7.18 and the Constitutional Rule requiring bills to be read on three several days be suspended and that CSHBi2120 be placed on its third reading and final passage.

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

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

(Senator Carona in Chair)

HOUSE BILL 3482 ON SECOND READING

On motion of Senator Armbrister and by unanimous consent, the regular order of business was suspended to take up for consideration HB 3482 at this time on its second reading:

HB 3482, Relating to the creation of the North Fort Bend Water Authority; providing authority to issue bonds; granting the power of eminent domain; providing an administrative penalty.

The bill was read second time.

Senator Armbrister offered the following amendment to the bill:

Floor Amendment No. 1

Amend HB 3482 as follows:

A BILL TO BE ENTITLED

AN ACT

relating to the creation of the North Fort Bend Water Authority; the creation of the Fort Bend County Municipal Utility District No. 178; the creation of the Fort Bend County Municipal Utility District No. 182; the creation of the Fort Bend County Municipal Utility District No. 181; providing authority to impose a tax and issue bonds; granting the power of eminent domain; providing an administrative penalty.

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

ARTICLE 1. NORTH FORT BEND WATER AUTHORITY

SECTIONi1.1.iiAMENDMENT. Subtitle H, Title 6, Special District Local Laws Code, is amended by adding Chapter 8813 to read as follows:

CHAPTER 8813. NORTH FORT BEND WATER AUTHORITY

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i8813.001.iiDEFINITIONS. In this chapter:

(1)ii"Authority" means the North Fort Bend Water Authority.

(2)ii"Board" means the board of directors of the authority.

(3)ii"Commission" means the Texas Commission on Environmental Quality or its successor.

(4)ii"Director" means a member of the board.

(5)ii"District" means any district created under Sections 52(b)(1) and (2), Article III, or Section 59, Article XVI, Texas Constitution, regardless of the manner of creation, other than:

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(A)iia navigation district or port authority;

(B)iia district governed by Chapter 36, Water Code; or

(C)iia district that does not have the legal authority to supply water.

(6)ii"Groundwater reduction plan" means a plan adopted or implemented to supply water, reduce reliance on groundwater, regulate groundwater pumping and usage, or require and allocate water usage among persons in order to comply with or exceed requirements imposed by the Fort Bend Subsidence District or the Harris-Galveston Coastal Subsidence District, as applicable, including any applicable groundwater reduction requirements.

(7)ii"Local government" means a municipality, county, district, or other political subdivision of this state or a combination of two or more of those entities.

(8)ii"Person" includes an individual, corporation, organization, government or governmental subdivision or agency, district, local government, business trust, estate, trust, partnership, association, and any other legal entity.

(9)ii"Subsidence" means the lowering in elevation of the surface of land by the withdrawal of groundwater.

(10)ii"System" means a network of pipelines, conduits, valves, canals, pumping stations, force mains, treatment plants, and any other construction, device, or related appurtenance used to treat or transport water.

(11)ii"Water" includes:

(A)iigroundwater, percolating or otherwise;

(B)iiany surface water, natural or artificial, navigable or nonnavigable; and

(C)iiindustrial and municipal wastewater.

(12)ii"Well" includes a facility, device, or method used to withdraw groundwater from a groundwater source within the boundaries of the authority.

Sec.i8813.002.iiNATURE OF AUTHORITY. The authority is a regional water authority in Fort Bend and Harris Counties created under and essential to accomplish the purposes of Section 59, Article XVI, Texas Constitution, including the acquisition and provision of surface water and groundwater for residential, commercial, industrial, agricultural, and other uses, the reduction of groundwater withdrawals, the conservation, preservation, protection, and recharge of groundwater and of groundwater reservoirs or their subdivisions, the prevention of waste of groundwater, the control of subsidence caused by the withdrawal of water from groundwater reservoirs or their subdivisions, and other public purposes stated in this chapter. The authority is a political subdivision of this state.

Sec.i8813.003.iiCONFIRMATION ELECTION NOT REQUIRED. An election to confirm the creation of the authority is not required.

Sec.i8813.004.iiINITIAL AUTHORITY TERRITORY. (a) The authority is initially composed of the territory described by Section 2 of the Act creating this chapter.

(b)iiThe boundaries and field notes contained in Section 2 of the Act creating this chapter form a closure. A mistake made in the field notes or in copying the field notes in the legislative process does not affect:

(1)iithe organization, existence, or validity of the authority;

3420 79th Legislature — Regular Session 78th Day

(2)iithe right of the authority to issue any type of bond or note for the purposes for which the authority is created or to pay the principal of and interest on a bond or note;

(3)iithe right of the authority to impose or collect a fee, user fee, rate, charge, or special assessment; or

(4)iithe legality or operation of the authority.

(c)iiAll of the territory of a local government created after the effective date of the Act creating this chapter that encompasses any territory within the boundaries of the authority, immediately on the creation and without any action required of the authority, is subject to all of the rights, powers, privileges, and rules of the authority to the same extent as the territory was before the local government was created.

Sec.i8813.005.iiEXCLUSION OF CERTAIN TERRITORY. (a) A district or municipality that, on the effective date of the Act creating this chapter, is located, wholly or partly, within the territory described by Section 2(a) or (b) of the Act creating this chapter may petition for exclusion of all of its territory from the authority's boundaries by a petition signed by a majority of the members of the governing body of the district or municipality.

(b)iiThe board shall:

(1)iinot later than the 120th day after the effective date of the Act creating this chapter, grant the petition and order the territory excluded if the petition:

(A)iiincludes an accurate legal description of the boundaries of the territory to be excluded; and

(B)iiis filed with the authority not later than the 60th day after the effective date of the Act creating this chapter; and

(2)iiif the board grants the petition, file for recording in the office of the county clerk for the applicable county or counties a copy of the order and a description of the authority's boundaries as they exist after the exclusion of the territory.

(c)iiIf a district or municipality is excluded from the authority's boundaries under this section, the authority is not required to:

(1)iiprovide water or any other service to the district or municipality; or

(2)iiinclude the district or municipality in any groundwater reduction plan adopted or implemented by the authority.

(d)iiIf, not later than the 60th day after the effective date of the Act creating this chapter, a district or municipality files a petition for exclusion under this section, the authority may not impose fees, user fees, rates, charges, or special assessments on the district or municipality after the petition is filed with the authority unless the district or municipality is annexed by the authority under Section 8813.006.

(e)iiIf a district or municipality excluded from the authority's boundaries under this section petitions the authority to be annexed under Section 8813.006, the authority may annex the district or municipality. The authority may, as a condition of annexation, require terms and conditions the board considers appropriate. The authority may require the district or municipality to pay the authority the fees, user fees, charges, and special assessments, with interest, that, as determined by the authority, the district or municipality would have been charged by the authority if the district or municipality had not been excluded from the authority under this section.

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Sec.i8813.006.iiANNEXATION. (a) Except to the extent the authority agrees in writing, a municipality's annexation of territory within the authority does not affect:

(1)iithe authority's powers inside or outside the annexed territory;

(2)iithe authority's boundaries or contracts; or

(3)iithe authority's ability to assess fees, user fees, rates, charges, or special assessments inside or outside the territory annexed by the municipality.

(b)iiTerritory may be annexed to the authority, regardless of whether the territory is contiguous to the authority, as provided by Chapter 49, Water Code.

(c)iiIn addition to the authority granted by Subsection (b), regardless of whether the territory is contiguous to the authority, the authority may annex some or all of the territory located within a district or municipality if the district or municipality files with the authority a petition requesting the annexation signed by a majority of the members of the governing body of the district or municipality. The petition must include an accurate legal description of the boundaries of the territory to be included. If the authority has bonds, notes, or other obligations outstanding, the authority shall require the petitioning district or municipality to be obligated to pay its share of the principal of and interest on the outstanding bonds, notes, or other obligations, and related costs. The board may grant the petition and order the territory described by the petition annexed to the authority if it is feasible, practicable, and to the advantage of the authority.

(d)iiAny territory that a district located within the authority annexes becomes territory of the authority on the effective date of the annexation without any action required of the authority. The authority by rule may require all districts located within the authority to send to the authority written notice of the effective date of an annexation and require the districts to send to the authority copies of any necessary documents describing the annexed land and describing the districts' boundaries as they exist after inclusion of the annexed land.

(e)iiThe annexation to the authority of territory under this section does not affect the validity of the authority's bonds issued before or after the annexation.

(f)iiA municipality that annexes territory of the authority for limited purposes under Subchapter F, Chapter 43, Local Government Code, does not have the right to:

(1)iireceive notices from the authority under Section 8813.103(c);

(2)iiparticipate in the appointment of directors under Subchapter B; or

(3)iireceive information about or have the opportunity to fund its share of capital costs in the manner provided by the authority under Section 8813.104.

Sec.i8813.007.iiAPPLICABILITY OF OTHER LAW. (a) Except as otherwise provided by this chapter, Chapter 49, Water Code, applies to the authority.

(b)iiThis chapter does not prevail over or preempt a provision of Chapter 36, Water Code, Chapter 8801 of this code, or Chapter 1045, Acts of the 71st Legislature, Regular Session, 1989, that is being implemented by the Harris-Galveston Coastal Subsidence District or Fort Bend Subsidence District, as applicable.

Sec.i8813.008.iiFINDING OF BENEFIT.iiAll the land, property, and persons included within the boundaries of the authority will be directly benefited by the works, projects, improvements, and services to be provided by the authority under powers conferred by Section 59, Article XVI, Texas Constitution, and this chapter. The authority is created to serve a public use and benefit. The creation of the authority

3422 79th Legislature — Regular Session 78th Day

(1)iithe reduction of groundwater withdrawals;

(2)iithe facilitation of compliance with the requirements of the Fort Bend Subsidence District or the Harris-Galveston Coastal Subsidence District, as applicable; and

(3)iithe provision of services, facilities, and systems.

[Sections 8813.009-8813.020 reserved for expansion]

SUBCHAPTER A-1. TEMPORARY PROVISIONS

Sec.i8813.021.iiINITIAL DIRECTORS. (a) The initial board consists of:

Name of Director: Representing Director Precinct:

David Spell1

Robert Darden2

Bruce Fay3

Melony Gay4

Robert Patton5

Peter Houghton6

Pat Hebert7

(b)iiThe directors for director precincts 1, 3, 5, and 7 shall serve until the appointment of directors under Section 8813.056 in 2008. The directors for director precincts 2, 4, and 6 shall serve until the appointment of directors under Section 8813.056 in 2010.

Sec.i8813.022.iiEXPIRATION OF SUBCHAPTER. This subchapter expires September 1, 2010.

[Sections 8813.023-8813.050 reserved for expansion]

SUBCHAPTER B. BOARD OF DIRECTORS

Sec.i8813.051.iiDIRECTORS; TERMS. (a) The authority is governed by a board of seven directors.

(b)iiThe directors serve staggered four-year terms that expire May 15 of even-numbered years.

Sec.i8813.052.iiELIGIBILITY TO SERVE AS DIRECTOR. (a) To be eligible to serve as a director of the authority or to be listed on a ballot as a candidate for director of the authority representing a director precinct, an individual must:

(1)iibe at least 18 years of age;

(2)iibe a resident of the authority; and

(3)iihave served as a director of one or more districts for a total of at least four years.

(b)iiNotwithstanding Subsection (a), to serve as a director representing, or to be listed on a ballot as a candidate for director representing, a director precinct that includes any part of the City of Fulshear, an individual must:

(1)iimeet the qualifications provided by Subsections (a)(1) and (2); and

(2)iihave served as:

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(A)iithe mayor or a member of the city council of the City of Fulshear for any period; or

(B)iia director of one or more districts for a total of at least four years.

Sec.i8813.053.iiDISQUALIFICATION OF DIRECTORS. The common law doctrine of incompatibility does not disqualify an official or employee of a public entity from serving as a director of the authority. A 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.

Sec.i8813.054.iiCONFLICTS OF INTEREST. Chapter 171, Local Government Code, governs conflicts of interest of board members.

Sec.i8813.055.iiSINGLE-MEMBER DIRECTOR PRECINCTS. (a) The authority is divided into seven single-member director precincts, as described by Section 3 of the Act creating this chapter.

(b)iiThe board may redraw the single-member director precincts in a manner that is reasonable and equitable:

(1)iiafter any change in the boundaries of the authority; or

(2)iiby a resolution redrawing the director precincts adopted by a two-thirds majority of the board based on changed circumstances.

Sec.i8813.056.iiMETHOD OF APPOINTMENT OF DIRECTORS. (a) The governing bodies of the districts and municipalities located within each director precinct jointly shall appoint one director to represent the precinct by a vote conducted as provided by this section.

(b)iiIf a district or municipality is located within two or more director precincts, the district or municipality is considered, for purposes of this section, to be located only within the director precinct in which the greatest amount of territory of the district or municipality is located.

(c)iiFor the appointment of a director for a director precinct, the board shall determine the number of votes each district or municipality may cast. The number of votes for a governing body of a district or municipality within the precinct is equal to the number computed by dividing the total number of units of water, as determined by the board, used within the precinct by the district or municipality during the calendar year preceding the year in which the director is selected by the total number of units of water used within the precinct by all districts and municipalities in the precinct, multiplying that quotient by 100, and rounding that result to the nearest one-tenth. The board shall provide the presiding officer of each governing body of a district or municipality within each director precinct written notice of the number of votes computed for that governing body to cast.

(d)iiFor purposes of Subsection (c), the board shall determine the amount of water usage of all districts and municipalities within each director precinct.

(e)iiIn the appropriate even-numbered year, the governing body of each district or municipality in a director precinct by resolution may nominate one candidate for the position of director for that director precinct. Each district or municipality shall submit the name of its candidate, if any, to the presiding officer of the authority by February 15 of that year. If by February 15 of that year only one candidate's name is submitted for the position of director for a director precinct, the board may declare the unopposed candidate elected and may cancel the director appointment procedures

3424 79th Legislature — Regular Session 78th Day

(f)iiAn individual may not be listed as a candidate on the ballot for more than one director position. If a candidate is nominated for more than one director position, the candidate must choose to be on the ballot for only one director position.

(g)iiThe governing body of each district or municipality shall determine its votes for director by resolution and submit them to the presiding officer of the authority before May 1 of the appropriate even-numbered year. In casting its votes for director, the governing body of each district or municipality may vote for only one candidate on the ballot for the director precinct in which the district or municipality is located. For each director precinct from which a director is being appointed, the board shall count the votes, declare elected the candidate who received the greatest number of votes from districts and municipalities located within that director precinct, and submit the results before May 15 of that year to the governing body of each district or municipality within that director precinct.

(h)iiThe board may adopt rules regarding:

(1)iithe manner and timing of determinations and calculations required by this section;

(2)iithe reporting of water usage to the authority by districts and municipalities; and

(3)iithe conduct and process of the appointment of directors.

Sec.i8813.057.iiVACANCY IN OFFICE OF DIRECTOR. A vacancy in the office of director shall be filled by appointment by the governing bodies of the districts and municipalities that are located within the director precinct for which the vacancy occurred. The appointment process shall follow the procedures of Section 8813.056. The board may establish dates different from those specified by Sections 8813.056(e) and (g), but the date for the board's submission of the voting results to each district and municipality may not be later than the 120th day after the date the vacancy occurs.

Sec.i8813.058.iiMEETINGS AND ACTIONS OF BOARD. (a) The board may meet as many times each year as the board considers appropriate.

(b)iiDirectors of the authority are public officials and are entitled to governmental immunity for their actions in their capacity as directors and officers of the authority.

Sec.i8813.059.iiGENERAL MANAGER. (a) The board may employ a general manager of the authority or contract with a person to perform the duties of a general manager. The board may delegate to the general manager full authority to manage and operate the affairs of the authority subject only to orders of the board.

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(b)iiThe board may delegate to the general manager the authority to employ all persons necessary for the proper handling of the business and operation of the authority and to determine the compensation to be paid to all employees, other than the general manager.

[Sections 8813.060-8813.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES

Sec.i8813.101.iiGENERAL POWERS AND DUTIES. (a) The authority may:

(1)iiprovide for the conservation, preservation, protection, recharge, and prevention of waste of groundwater, and for the reduction of groundwater withdrawals as necessary to develop, implement, or enforce a groundwater reduction plan, in a manner consistent with the purposes of Section 59, Article XVI, Texas Constitution, and facilitate compliance with Fort Bend Subsidence District or Harris-Galveston Coastal Subsidence District, as applicable, rules, orders, regulations, or requirements;

(2)iiacquire or develop surface water and groundwater supplies from sources inside or outside the boundaries of the authority, conserve, store, transport, treat, purify, distribute, sell, and deliver water to or among persons inside and outside the boundaries of the authority, and allocate water among persons participating in the authority's groundwater reduction plan whether they are located inside or outside the authority's boundaries;

(3)iienter into contracts with persons inside or outside the authority on terms and conditions the board considers desirable, fair, and advantageous for the performance of its rights, powers, and authority under this chapter;

(4)iicoordinate water services provided inside, outside, or into the authority;

(5)iiprovide wholesale and retail water services to any users or customers within the authority's boundaries without being required to execute contracts with those users or customers;

(6)iiadopt policies establishing whether, when, and the manner in which the authority uses requests for proposals in obtaining services, including professional services;

(7)iidetermine whether to adopt administrative policies in addition to those required by Section 49.199, Water Code; and

(8)iiadminister and enforce this chapter.

(b)iiSections 49.451-49.455, Water Code, do not apply to the authority.

(c)iiNotwithstanding Subsection (a)(5), the authority may not provide retail water service to a retail user within the authority's boundaries that is located within the boundaries of a district or municipality on the date the authority awards a contract for the construction or executes a contract for the acquisition of water facilities to serve that retail user, unless:

(1)iithe district or municipality consents in writing to the authority's provision of retail water service; or

(2)iithe retail user owns or operates a well.

(d)iiIf a retail user that does not own or operate a well is added to the boundaries of a district or municipality after the date the authority awards a contract for the construction or executes a contract for the acquisition of water facilities to serve that retail user, the authority may provide retail service to that retail user without the written consent of the district or municipality.

3426 79th Legislature — Regular Session 78th Day

Sec.i8813.102.iiAUTHORITY RULES.iiThe authority may adopt and enforce rules reasonably required to implement this chapter, including rules governing procedures before the board and rules regarding implementation, enforcement, and any other matters related to the authority's water supply or groundwater reduction plan.

Sec.i8813.103.iiFEES, USER FEES, RATES, AND CHARGES. (a) The authority may establish fees, user fees, rates, and charges and classifications of payers of fees and rates as necessary to enable the authority to fulfill the authority's purposes and regulatory functions provided by this chapter. The authority may impose fees, user fees, rates, and charges on any person within the authority.

(b)iiThe authority may charge the owner of a well located within the authority's boundaries a fee or user fee according to the amount of water pumped from the well. If ownership of a well changes, both the prior and subsequent well owners are liable to the authority, jointly and severally, for all fees and user fees imposed by the authority under this subsection, and any related penalties and interest, for water pumped from that well before the change in well ownership.

(c)iiThe board shall make reasonable efforts to send districts and municipalities written notice of the date, time, and location of the meeting at which the board intends to adopt a proposed charge under Subsection (b) and the amount of the proposed charge. The board's failure to comply with this subsection does not invalidate a charge adopted by the board under Subsection (b).

(d)iiFor wells located in Harris County or Fort Bend County, the board shall exempt from the charge under Subsection (b) classes of wells that are not subject to any groundwater reduction requirement imposed by the Harris-Galveston Coastal Subsidence District or the Fort Bend Subsidence District, as applicable. If any of those classes of wells become subject to a groundwater reduction requirement imposed by the applicable subsidence district, the authority may impose the charge under Subsection (b) on those classes. The board by rule may exempt any other classes of wells from the charge under Subsection (b). The board may not apply the charge under Subsection (b) to a well:

(1)iiwith a casing diameter of less than five inches that serves only a single-family dwelling; or

(2)iiregulated under Chapter 27, Water Code.

(e)iiFor purposes of Subsection (d), a well is subject to a groundwater reduction requirement if the applicable subsidence district has adopted or adopts a requirement or rule that groundwater withdrawals from the well, or from the well and other wells collectively, be reduced, including a groundwater reduction that is not required until a future date.

(f)iiThe authority may establish fees, user fees, rates, and charges that are sufficient to:

(1)iiachieve water conservation;

(2)iiprevent waste of water;

(3)iiserve as a disincentive to pumping groundwater;

(4)iidevelop, implement, or enforce a groundwater reduction plan;

(5)iiaccomplish the purposes of this chapter, including making available alternative water supplies;

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(6)iienable the authority to meet operation and maintenance expenses;

(7)iipay the principal of and interest on notes, bonds, and other obligations issued in connection with the exercise of the authority's general powers and duties; and

(8)iisatisfy all rate covenants relating to the issuance of notes, bonds, and other obligations.

(g)iiThe authority may charge rates established by the authority for water purchased from the authority.

(h)iiThe authority may impose fees, user fees, or charges for the importation of water into the authority's boundaries from a source located outside the authority's boundaries.

Sec.i8813.104.iiPURCHASE OF WATER FROM ANOTHER ENTITY. (a) If the authority purchases water from another entity for resale to local governments, the authority shall use its best efforts in negotiating with the entity to determine the amount of capital costs included in any rates or charges paid by the authority. The authority shall determine the amount of expected capital costs of its own system.

(b)iiThe authority shall provide each district or municipality within its boundaries information regarding the share of the capital costs to be paid by the district or municipality, as determined by the authority, and shall provide each district or municipality the opportunity, in a manner and by a procedure determined by the authority, to fund its share of the capital costs with proceeds from the sale of bonds or fees and charges collected by the districts or municipalities. A district or municipality may use any lawful source of revenue, including bond funds, to pay any sums due to the authority.

(c)iiThe authority may adopt a procedure by which a district or municipality may receive a credit from the authority. The board may adopt any other procedure necessary to accomplish the goals of this section.

(d)iiIn complying with this section, the authority may use any reasonable basis to calculate from time to time the share of the capital costs of a district or municipality. The authority may calculate the shares of the capital costs based on the amount of water used within the authority by the district or municipality during the calendar year preceding the year in which the calculation is made.

(e)iiThis section or any failure to comply with this section does not limit or impede the authority's ability to issue bonds or notes or invalidate any fees, user fees, charges, rates, or special assessments imposed by the authority.

Sec.i8813.105.iiASSESSMENTS. (a) The board may undertake improvement projects and services that confer a special benefit on all or a definable part of the authority. The board may impose special assessments on property in that area, including property of a local government, based on the benefit conferred by the improvement project or services, to pay all or part of the cost of the project and services. The board may provide improvements and services to an area outside the boundaries of the authority if the board determines that there is a benefit to the authority. The authority may finance with special assessments any improvement project or service authorized by this chapter or any other applicable law.

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(b)iiServices or improvement projects may be financed with special assessments under this chapter only after the board holds a public hearing on the advisability of the improvements and services and the proposed assessments.

(c)iiThe board shall publish notice of the hearing in a newspaper or newspapers with general circulation in Harris and Fort Bend Counties. The publication must be made not later than the 30th day before the date of the hearing.

(d)iiNotice provided under this section must include:

(1)iithe time and place of the hearing;

(2)iithe general nature of the proposed improvement project or services;

(3)iithe estimated cost of the improvement, including interest during construction and associated financing costs; and

(4)iithe proposed method of assessment.

(e)iiWritten notice containing the information required by Subsection (d) shall be mailed by certified mail, return receipt requested, not later than the 30th day before the date of the hearing. The notice shall be mailed to each person within the authority who holds a permit for a well issued by the Harris-Galveston Coastal Subsidence District or Fort Bend Subsidence District, as applicable, and whose well is subject to a groundwater reduction requirement imposed by that district. The Harris-Galveston Coastal Subsidence District and Fort Bend Subsidence District shall provide to the authority a list of persons who hold such a permit.

(f)iiThe board may establish rules regarding procedures for a hearing. A hearing on the services or improvement project, whether conducted by the board or a hearings examiner, may be adjourned from time to time. At the conclusion of a hearing conducted by the board, the board shall make written findings and conclusions relating to the advisability of the improvement project or services, the nature of the improvement project or services, the estimated cost, and the area benefited. If the board appoints a hearings examiner to conduct the hearing, after conclusion of the hearing, the hearings examiner shall file with the board a written report of the examiner's findings and conclusions.

(g)iiAt a hearing on proposed assessments, on adjournment of the hearing, or after consideration of the hearings examiner's report, the board shall hear and rule on all objections to each proposed assessment. The board may amend proposed assessments for any property. After the board hears and takes action on those objections, the board, by order:

(1)iishall impose the assessments as special assessments on the property;

(2)iishall specify the method of payment of the assessments; and

(3)iimay provide that those assessments, including interest, be paid in periodic installments.

(h)iiPeriodic installments must be in amounts sufficient to meet annual costs for services and improvements as provided by Subsection (j) and continue for the number of years required to retire the indebtedness or pay for the services to be rendered. The board may provide interest charges or penalties for failure to make timely payment and may impose an amount to cover delinquencies and expenses of collection.

(i)iiIf assessments are imposed for more than one service or improvement project, the board may provide that assessments collected for one service or improvement project may be borrowed to be used for another service or improvement

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(j)iiThe board shall apportion the cost of an improvement project or services to be assessed against the property in the authority according to the special benefits that accrue to the property because of the improvement project or services. The board may assess the cost only according to the number of gallons of groundwater pumped from wells within the authority that are subject to a groundwater reduction requirement imposed by the Harris-Galveston Coastal Subsidence District or Fort Bend Subsidence District, as applicable. The board may not assess the cost according to groundwater pumped from:

(1)iia well with a casing diameter of less than five inches that serves only a single-family dwelling; or

(2)iia well that is regulated by Chapter 27, Water Code.

(k)iiThe area of the authority to be assessed according to the findings of the board may be the entire authority or any part of the authority and may be less than the area proposed in the notice of the hearing.

(l)iiThe area to be assessed may not include property that is not within the authority boundaries at the time of the hearing unless there is an additional hearing, following the required notice.

(m)iiNotwithstanding Subsection (l), the owner of land annexed to the authority after the authority has imposed assessments may waive the right to notice and an assessment hearing and may agree to the imposition and payment of assessments at an agreed rate for land annexed to the authority. A district or municipality may waive the right to notice and an assessment hearing for land within its boundaries annexed to the authority and may agree to the imposition and payment of assessments at an agreed rate for the annexed land.

(n)iiThe board shall have prepared an assessment roll showing the assessments against each property and the board's basis for the assessment. The assessment roll shall be:

(1)iifiled with the secretary of the board or other officer who performs the function of secretary; and

(2)iiopen for public inspection.

(o)iiAfter notice and hearing in the manner required for an original assessment, the board may make supplemental assessments to correct omissions or mistakes in the assessment:

(1)iirelating to the total cost of the improvement project or services; or

(2)iicovering delinquencies or costs of collection.

Sec.i8813.106.iiINTEREST AND PENALTIES. The board may require the payment of interest on any late or unpaid fees, user fees, rates, charges, and special assessments due the authority, but the interest rate may not exceed the interest rate permitted by Section 2251.025, Government Code. The board may also impose penalties for the failure to make a complete or timely payment to the authority. In addition, the board may exclude a person, or any territory or well owned or controlled by a person, from the authority's groundwater reduction plan for failure to make a complete or timely payment to the authority.

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Sec.i8813.107.iiATTORNEY'S FEES AND COLLECTION EXPENSES. (a) The authority is entitled to reasonable attorney's fees incurred by the authority in enforcing its rules.

(b)iiThe authority is entitled to collection expenses and reasonable attorney's fees incurred by the authority in collecting any delinquent fees, user fees, rates, and charges and any related penalties and interest.

Sec.i8813.108.iiLIEN. (a) Fees and user fees imposed by the authority under Section 8813.103(b), any related penalties and interest, and collection expenses and reasonable attorney's fees incurred by the authority:

(1)iiare a first and prior lien against the well to which the fees or user fees apply;

(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 a charge against the owner of the well.

(b)iiA lien under this section is effective from the date of the resolution or order of the board imposing the fee or user fee until the fee or user fee is paid.

(c)iiThe board may enforce the lien in the same manner that a municipal utility district operating under Chapter 54, Water Code, may enforce an ad valorem tax lien against real property.

Sec.i8813.109.iiADMINISTRATIVE PENALTY; INJUNCTION. (a) A person who violates a rule or order of the authority is subject to an administrative penalty of not more than $5,000, as determined by the board, for each violation or each day of a continuing violation. The person shall pay the penalty to the authority.

(b)iiThe authority may bring an action to recover the penalty in a district court in the county where the violation occurred.

(c)iiThe authority may bring an action for injunctive relief in a district court in the county where a violation of an authority rule or order occurs or is threatened to occur. The court may grant to the authority, without bond or other undertaking, a prohibitory or mandatory injunction that the facts warrant, including a temporary restraining order, temporary injunction, or permanent injunction.

(d)iiThe authority may bring an action for an administrative penalty and injunctive relief in the same proceeding.

Sec.i8813.110.iiWATER SUPPLY OR DROUGHT CONTINGENCY PLANS. The authority by rule may develop, prepare, revise, adopt, implement, enforce, and manage comprehensive water supply or drought contingency plans for the authority, or any portion of the authority.

Sec.i8813.111.iiGROUNDWATER REDUCTION PLAN. (a) The authority may wholly or partly develop, prepare, revise, adopt, implement, enforce, manage, or participate in a groundwater reduction plan that is applicable only to the authority and one or more persons outside the authority. The authority may require that any groundwater reduction plan that the authority wholly or partly develops, prepares, revises, adopts, implements, enforces, or manages or in which the authority participates be the exclusive groundwater reduction plan that is binding and mandatory on some or all of the territory, persons, or wells located within the authority. A groundwater reduction plan may:

(1)iispecify the measures to be taken to reduce groundwater withdrawals;

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(2)iiidentify alternative sources of water, including water from the authority, to be provided to those affected;

(3)iiidentify the rates, terms, and conditions under which alternative sources of water will be provided, which may be changed from time to time as considered necessary by the authority;

(4)iispecify the dates and extent to which persons or districts within the authority's boundaries shall reduce or cease reliance on groundwater and accept water from alternative sources, including water from the authority;

(5)iiinclude other terms and measures that are consistent with the powers and duties of the authority;

(6)iiexceed the minimum requirements imposed by the Harris-Galveston Coastal Subsidence District or Fort Bend Subsidence District, as applicable, including any applicable groundwater reduction requirements; and

(7)iibe amended from time to time at the discretion of the authority.

(b)iiFees, user fees, rates, charges, and special assessments of the authority may be imposed under this chapter for a person's participation in and benefit derived from the authority's groundwater reduction plan or a groundwater reduction plan in which the authority participates.

Sec.i8813.112.iiACQUISITION, CONSTRUCTION, AND OPERATION OF SYSTEMS. (a) The authority may:

(1)iiacquire by purchase, gift, lease, contract, or any other legal means a water treatment or supply system, or any other works, plants, improvements, or facilities necessary or convenient to accomplish the purposes of the authority, or any interest of the authority, inside or outside the authority's boundaries;

(2)iidesign, finance, operate, maintain, or construct a water treatment or supply system or any other works, plants, improvements, or facilities necessary or convenient to accomplish the purposes of the authority and provide water services inside or outside the authority's boundaries;

(3)iilease or sell a water treatment or supply system or any other works, plants, improvements, or facilities necessary or convenient to accomplish the purposes of the authority that the authority constructs or acquires inside or outside the authority's boundaries;

(4)iicontract with any person to operate or maintain a water treatment or supply system the person owns; or

(5)iiacquire water rights under any law or permit.

(b)iiThe authority may contract, according to terms and conditions the board considers desirable, fair, and advantageous, with a person outside the authority's boundaries:

(1)iito allow the person, or the person's well, to be included in a groundwater reduction plan adopted or implemented wholly or partly by the authority or in a groundwater reduction plan in which the authority participates;

(2)iito sell water to the person; or

(3)iito sell the person available excess capacity or additional capacity of the authority's water treatment or supply system.

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(c)iiThe authority by rule may require that the plans and specifications of water lines to be constructed within the authority that are designed or intended to serve more than one district or more than one person owning or holding a well permit issued by the Harris-Galveston Coastal Subsidence District or Fort Bend Subsidence District, as applicable, be approved by the authority before the commencement of construction of the water lines.

Sec.i8813.113.iiSALE OR REUSE OF WATER OR BY-PRODUCT. The authority may store, sell, or reuse:

(1)iiwater; or

(2)iiany by-product from the authority's operations.

Sec.i8813.114.iiCONTRACTS. (a) The authority may enter into a contract with a person for the performance of a purpose or function of the authority, including a contract to design, construct, finance, lease, own, manage, operate, or maintain works, improvements, facilities, plants, equipment, or appliances necessary to accomplish a purpose or function of the authority. A contract may be of unlimited duration.

(b)iiThe authority may purchase, acquire, finance, or lease an interest in a project used for a purpose or function of the authority.

(c)iiThe authority may contract for:

(1)iithe purchase, sale, or lease of water or water rights;

(2)iithe performance of activities within the powers of the authority through the purchase, construction, or installation of works, improvements, facilities, plants, equipment, or appliances; or

(3)iithe design, construction, ownership, management, maintenance, or operation of any works, improvements, facilities, plants, equipment, or appliances of the authority or another person.

(d)iiThe authority may purchase surplus property from this state, the United States, or another public entity through a negotiated contract without bids.

Sec.i8813.115.iiCOOPERATION WITH AND ASSISTANCE OF OTHER GOVERNMENTAL ENTITIES. (a) In implementing this chapter, the board may cooperate with and request the assistance of the Texas Water Development Board, the commission, the United States Geological Survey, the Fort Bend Subsidence District, other local governments, and other agencies of the United States and this state.

(b)iiThe Fort Bend Subsidence District may enter into an interlocal contract with the authority to carry out the authority's purposes and may carry out the governmental functions and services specified in the interlocal contract.

(c)iiIn an attempt to minimize costs associated with preparing a groundwater reduction plan, the board may consider the usefulness of water supply studies and plans prepared by or on behalf of the North Harris County Regional Water Authority, the West Harris County Regional Water Authority, the City of Houston, or other governmental entities to the extent those studies or plans are available and applicable to the authority.

Sec.i8813.116.iiGIFTS AND GRANTS. The authority may accept a gift or grant from money collected by the Fort Bend Subsidence District to fund the construction, maintenance, or operation of a water treatment or supply system.

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Sec.i8813.117.iiEXPENDITURES. (a) The authority's money may be disbursed only by check, draft, order, federal reserve wire system, or other instrument or authorization.

(b)iiDisbursements of the authority must be signed by at least a majority of the directors. The board by resolution may allow the general manager, treasurer, bookkeeper, or other employee of the authority to sign disbursements, except as limited by Subsection (c).

(c)iiThe board by resolution may allow disbursements to be transferred by federal reserve wire system to accounts in the name of the authority without the necessity of any directors signing the disbursement. Disbursements of the authority's money by federal reserve wire system to any accounts not in the name of the authority must be signed by at least a majority of the directors.

Sec.i8813.118.iiAD VALOREM TAXATION. The authority may not impose an ad valorem tax.

Sec.i8813.119.iiEMINENT DOMAIN. (a) The authority may acquire by condemnation any land, easements, or other property inside the authority's boundaries to further authorized purposes, powers, or duties of the authority. The authority may acquire by condemnation any land, easements, or other property outside the authority's boundaries for the purposes of pumping, storing, treating, or transporting water. When exercising the power of eminent domain granted by this section, the authority may elect to condemn either the fee simple title or a lesser property interest.

(b)iiThe authority shall exercise the right of eminent domain in the manner provided by Chapter 21, Property Code. The authority is not required to give bond for appeal or bond for costs in a condemnation suit or other suit to which it is a party. The authority is not required to deposit more than the amount of an award in a suit.

(c)iiThe authority may not use the power of eminent domain for the condemnation of land for the purpose of acquiring rights to groundwater or for the purpose of acquiring water or water rights.

[Sections 8813.120-8813.150 reserved for expansion]

SUBCHAPTER D. BONDS AND NOTES

Sec.i8813.151.iiREVENUE BONDS AND NOTES. (a) The authority may issue bonds or notes payable solely from revenue from any source, including:

(1)iitolls, charges, rates, fees, user fees, and special assessments the authority imposes or collects;

(2)iithe sale of water, water services, water rights or capacity, water transmission rights or services, water pumping, or any other service or product of the authority provided inside or outside the boundaries of the authority;

(3)iigrants or gifts;

(4)iithe ownership or operation of all or a designated part of the authority's works, improvements, facilities, plants, or equipment; and

(5)iicontracts between the authority and any person.

(b)iiNotes issued by the authority may be first or subordinate lien notes at the board's discretion.

(c)iiIn connection with any bonds or notes of the authority, the authority may exercise any power of an issuer under Chapter 1371, Government Code.

3434 79th Legislature — Regular Session 78th Day

(d)iiThe authority may conduct a public, private, or negotiated sale of the bonds or notes.

(e)iiThe authority may enter into one or more indentures of trust to further secure its bonds or notes.

(f)iiThe authority may issue bonds or notes in more than one series as necessary to carry out the purposes of this chapter. In issuing bonds or notes secured by revenue of the authority, the authority may reserve the right to issue additional bonds or notes secured by the authority's revenue that are on a parity with or are senior or subordinate to the bonds or notes issued earlier.

(g)iiA resolution of the board authorizing the bonds or notes or a trust indenture securing the bonds or notes may specify additional provisions that constitute a contract between the authority and its bondholders or noteholders.

(h)iiBonds and notes may be additionally secured by deed of trust or mortgage on any or all of the authority's facilities.

(i)iiThe authority may issue refunding bonds or notes to refund any of its bonds or notes in any manner provided by law.

(j)iiSections 49.153, 49.154, and 49.181, Water Code, do not apply to bonds or notes issued by the authority. Commission rules regarding bonds or notes do not apply to bonds or notes issued by the authority.

SECTIONi1.2.iiINITIAL AUTHORITY TERRITORY. (a) The North Fort Bend Water Authority initially includes the territory that is contained in the following area, regardless of whether the territory contains noncontiguous parcels of land or whether the territory is located within the boundaries of any other governmental entity or political subdivision of the state:

BEGINNING at a point marking the Northwest corner and Point of Beginning of Regulatory Area A as defined in the Fort Bend Subsidence District 2003 Regulatory Plan, said point being near the intersection of Jordan Road and the common line between Waller and Fort Bend Counties and having approximate coordinates of North 298 45' 10" and West 958 55' 15";

THENCE in a Northeasterly direction, along and with the common line between said Waller and Fort Bend Counties to its intersection with the West line of the Willow Point Municipal Utility District (as it existed December 20, 2004), same being the West line of the W.W. Bains Survey, Abstract No. 753 (Fort Bend County) and Abstract No. 385 (Waller County);

THENCE in a Northerly direction, along and with the West line of said Willow Point Municipal Utility District (as it existed December 20, 2004), same being the West line of said W.W. Bains Survey, Abstract No. 385 to a point in the South right-of-way line of Interstate 10 and marking the Northwest corner of said Willow Point Municipal Utility District (as it existed December 20, 2004);

THENCE in an Easterly direction, along and with the South right-of-way line of said Interstate 10 to the Northeast corner of said Willow Point Municipal Utility District (as it existed December 20, 2004), said point also being a Southwest corner of the current corporate limits of the City of Katy;

Wednesday, May 25, 2005 SENATE JOURNAL 3435

THENCE in a Southerly direction, along and with the East line of said Willow Point Municipal Utility District (as it existed December 20, 2004), same being the East line of said W.W. Bains Survey, Abstract No. 385 to a point in the common line between Waller and Fort Bend Counties;

THENCE in a Northeasterly direction, along and with the common line between said Waller and Fort Bend Counties to its intersection with a Southerly line of the current corporate limits of said City of Katy, same being the South right-of-way line of said Interstate 10 and having approximate coordinates of North 298 46' 40" and West 958 51' 20";

THENCE in a generally Southeast direction and along and with the southerly limits of the current corporate limits of the City of Katy the following courses:

Easterly, along and with the South right-of-way line of said Interstate 10 to approximately 2,350 feet;

Southerly, approximately 2,350 feet;

Easterly, to its intersection with the Northeasterly line of the C.W. Schrimph Survey, Abstract No. 412;

Southeasterly, along and with the Northeasterly line of said Schrimph Survey and the Northeasterly line of the E. Everett Survey, Abstract No. 385 to point in the centerline of Katy-Flewellen Road and being the most Easterly corner of said Everett Survey;

Northeasterly, along and with the centerline of said Katy-Flewellen Road to its intersection with the Easterly right-of-way line of Pin Oak Road, same being a Westerly line of Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004);

Southeasterly, along and with the Easterly right-of-way line of said Pin Oak Road, same being a Westerly line of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004) to its intersection with the Southeasterly right-of-way line of said Katy-Flewellen Road;

Southwesterly, along and with the Southeasterly right-of-way line of said Katy-Flewellen Road, same being a Northeasterly line of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004) to the most Westerly corner of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004);

Southeasterly, along and with the most Southwesterly line of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004) to the most Westerly South corner of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004),

Northeasterly, along and with the Southeasterly line of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004) to an interior corner of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004), same being the most Northerly corner of Pin Oak Village Section 1;

Southeasterly, along and with the Northeasterly line of said Pin Oak Village Section 1, same being a Southwesterly line of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004) to the most

3436 79th Legislature — Regular Session 78th Day

Northeasterly, along and with the meanders of the Southeasterly line of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004), passing the most Westerly corner of Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004), continuing along and with the Southeasterly line of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004), same being the Northwesterly line of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004), passing the line common to Harris and Fort Bend Counties for the most East corner of said current corporate limits of the City of Katy, continuing along and with the Southeasterly line of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004), same being the Northwesterly line of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004) to a point in the West right-of-way line of Falcon Point Drive for the most Westerly North corner of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004), same being the most Easterly corner of said Harris-Fort Bend Counties Municipal Utility District No. 4 (as it existed December 20, 2004);

THENCE Easterly, along and with the North line of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004) to the most Easterly North corner of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004);

THENCE Southeasterly, along and with the Northeast line of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004) to the Northeast corner of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004);

THENCE Southwesterly, along and with a Southeast line of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004) to an interior corner of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004);

THENCE Southeasterly, along and with a Northeast line of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004), crossing the line common to Harris and Fort Bend Counties, passing the most Easterly corner of said Harris-Fort Bend Counties Municipal Utility District No. 1 (as it existed December 20, 2004), continuing along and with a Southeasterly extension of said Northeast line, crossing Roesner Road to a point in the Southeasterly right-of-way line of said Roesner Road, same being the Northwesterly line of Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004);

THENCE Northeasterly, along and with the Southeasterly right-of-way line of said Roesner Road, same being the Northwesterly line of Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004) to a point in the

Wednesday, May 25, 2005 SENATE JOURNAL 3437

THENCE Southeasterly, along and with said county line, same being a Northeasterly line of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004) to a point in the Northwesterly line of the Cimarron Municipal Utility District (as it existed December 20, 2004) for the most Easterly North corner of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004);

THENCE Southwesterly, along and with the Northwesterly line of said Cimarron Municipal Utility District (as it existed December 20, 2004), same being a Southeast line of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004) to an interior corner of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004);

THENCE Southeasterly, along and with a Northeasterly line of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004), same being a Southwesterly line of said Cimarron Municipal Utility District (as it existed December 20, 2004) to an interior corner of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004);

THENCE Northeasterly, along and with a Northwesterly line of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004), same being a Southeasterly line of said Cimarron Municipal Utility District (as it existed December 20, 2004) to an interior corner of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004);

THENCE Southeasterly, along and with a Northeasterly line of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004), same being a Southwesterly line of said Cimarron Municipal Utility District (as it existed December 20, 2004) to an interior corner of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004), same being the most Southerly corner of said Cimarron Municipal Utility District (as it existed Decemberi20, 2004);

THENCE Northeasterly, along and with a Northwesterly line of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004), same being a Southeasterly line of said Cimarron Municipal Utility District (as it existed December 20, 2004), crossing the line common to said Harris and Fort Bend Counties and the Grand Parkway (State Highway 99) passing a point in the Easterly right-of-way of said Grand Parkway, continuing along and with a Northwesterly line of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed December 20, 2004) to point in a Southwesterly line of Cinco Municipal Utility District No. 9 (as it existed December 20, 2004) for the most Northerly corner of said Harris-Fort Bend Counties Municipal Utility District No. 5 (as it existed Decemberi20, 2004) East of said Grand Parkway;

3438 79th Legislature — Regular Session 78th Day

THENCE Northwesterly, along and with a Southwesterly line of said Cinco Municipal Utility District No. 9 (as it existed December 20, 2004) to a point in the South line of said Cimarron Municipal Utility District (as it existed December 20, 2004) for the West corner of said Cinco Municipal Utility District No. 9 (as it existed December 20, 2004);

THENCE Easterly, along and with the North line of said Cinco Municipal Utility District No. 9 (as it existed December 20, 2004), same being the South line of said Cimarron Municipal Utility District (as it existed December 20, 2004) passing the common North corner of said Cinco Municipal Utility District No. 9 (as it existed December 20, 2004) and Cornerstones Municipal Utility District (as it existed December 20, 2004), also passing the common South corner of said Cimarron Municipal Utility District (as it existed December 20, 2004) and Harris County Municipal Utility District No. 81 (as it existed December 20, 2004), continuing along and with a South line of said Harris County Municipal Utility District No. 81 (as it existed December 20, 2004) to a point in Mason Road for the Northeast corner of said Cornerstones Municipal Utility District (as it existed December 20, 2004);

THENCE Southerly, along and with Mason Road, same being the East line of said Cornerstones Municipal Utility District (as it existed December 20, 2004), passing the common West corner of said Harris County Municipal Utility District No. 81 (as it existed December 20, 2004) and Memorial Municipal Utility District (as it existed December 20, 2004), continuing along and with Mason Road and along and with the East line of said Cornerstones Municipal Utility District (as it existed December 20, 2004) crossing the line common to Harris and Fort Bend Counties to the Southeast corner of said Memorial Municipal Utility District (as it existed December 20, 2004), same being the Northwest corner of Cinco Municipal Utility District No. 3 (as it existed December 20, 2004);

THENCE Easterly, along and with South line of said Memorial Municipal Utility District (as it existed December 20, 2004), same being the North line of said Cinco Municipal Utility District No. 3 (as it existed December 20, 2004) crossing the line common to Harris and Fort Bend Counties, passing the common North corner of said Cinco Municipal Utility District No. 3 (as it existed December 20, 2004) and Cinco Municipal Utility District No. 6 (as it existed December 20, 2004), continuing along and with the South line of said Memorial Municipal Utility District (as it existed December 20, 2004) to the most Easterly Northwest corner of said Cinco Municipal Utility District No. 6 (as it existed December 20, 2004);

THENCE Southeasterly, along and with the Northeasterly meanders of said Cinco Municipal Utility District No. 6 (as it existed December 20, 2004), same being partly the Southwesterly line of a Harris County Flood Control District right-of-way to the most Easterly corner of said Cinco Municipal Utility District No. 6 (as it existed December 20, 2004), same being an angle point in the Westerly current corporate limits of the City of Houston, same being the Westerly line of the United States Government Barker Reservoir, same further being the Easterly limits of Tract 1 of the West Harris County Regional Water Authority;

THENCE along and with the Easterly limits of said West Harris County Regional Water Authority, same being the Westerly current corporate limits of said City of Houston, same further being the Westerly line of said United States Government

Wednesday, May 25, 2005 SENATE JOURNAL 3439

South 238 42' West, a distance of 1178.3 feet;

North 598 10' West, a distance of 517.8 feet;

South 23' 32' West, to a point in the line common to Harris and Fort Bend Counties for the most Westerly Southeast corner of Tract 1 of said West Harris County Regional Water Authority and having approximate coordinates of North 298 44' 05" and West 958 43' 50"

THENCE Southwesterly and Northwesterly, continuing along and with the meanders of the Westerly current corporate limits of said City of Houston, same being the Westerly line of said United States Government Barker Reservoir, same further being the Easterly line of said Cinco Municipal Utility District No. 6 (as it existed Decemberi20, 2004) to a point in the Easterly right-of-way line of Fry Road, same being the Easterly line of Cinco Municipal Utility District No. 5 (as it existed December 20, 2004);

THENCE Southwesterly and Southeasterly, along and with the meanders of the Westerly current corporate limits of said City of Houston, same being the Westerly line of said United States Government Barker Reservoir, same further being the Easterly line of said Cinco Municipal Utility District No. 5 (as it existed Decemberi20, 2004) to a point in the centerline of the Willow Fork of Buffalo Bayou for the corner common to said Cinco Municipal Utility District No. 5 (as it existed Decemberi20, 2004) and Cinco Municipal Utility District No. 7 (as it existed December 20, 2004);

THENCE along and with the meanders of the Westerly current corporate limits of said City of Houston, same being the Westerly line of said United States Government Barker Reservoir, same further being the Easterly line of said Cinco Municipal Utility District No. 7 (as it existed December 20, 2004) to a point in the West line of the H.E. Looney Survey, Abstract No. 277 for an angle point;

THENCE Southerly, along and with the Westerly current corporate limits of said City of Houston, same being the Westerly line of said United States Government Barker Reservoir, same further being the Easterly line of said Cinco Municipal Utility District No. 7 (as it existed December 20, 2004) and the West line of said Looney Survey to a point in the North line of Cinco Municipal Utility District No. 8 (as it existed December 20, 2004) for the Southwest corner of said Looney Survey, same being the Southeast corner of said Cinco Municipal Utility District No. 7 (as it existed December 20, 2004);

THENCE Easterly, along and with the Westerly current corporate limits of said City of Houston, same being the Westerly line of said United States Government Barker Reservoir, same further being the Northerly line of said Cinco Municipal Utility District No. 8 (as it existed December 20, 2004) to the Northeast corner of said Cinco Municipal Utility District No. 8 (as it existed December 20, 2004);

THENCE Southerly, along and with the Westerly current corporate limits of said City of Houston, same being the Westerly line of said United States Government Barker Reservoir, same further being the Easterly line of said Cinco Municipal Utility District

3440 79th Legislature — Regular Session 78th Day

THENCE Westerly, along and with the meanders of the Westerly current corporate limits of said City of Houston, same being a Northerly line of said United States Government Barker Reservoir (Barker Dam Strip), same further being the Southerly line of the Northerly portion of said Cinco Municipal Utility District No. 8 (as it existed December 20, 2004), passing the common South corner of said Cinco Municipal Utility District No. 8 (as it existed December 20, 2004) and Grand Lakes Municipal Utility District No. 1 (as it existed December 20, 2004), continuing along and with the meanders of the Westerly current corporate limits of said City of Houston, same being a Northerly line of said United States Government Barker Reservoir (Barker Dam Strip), same further being the Southerly line of said Grand Lakes Municipal Utility District No. 1 (as it existed December 20, 2004), passing the Southwest corner of said Grand Lakes Municipal Utility District No. 1 (as it existed December 20, 2004) in the centerline of Peek Road, continuing along and with the meanders of the Westerly current corporate limits of said City of Houston, same being a Northerly line of said United States Government Barker Reservoir (Barker Dam Strip) to the Northwest corner of said Barker Dam Strip, same being the most Westerly Northeast corner of the Southern portion of Grand Lakes Municipal Utility District No. 4 (as it existed December 20, 2004);

THENCE Southerly, along and with the Westerly current corporate limits of said City of Houston, same being a Westerly line of said United States Government Barker Reservoir (Barker Dam Strip), same further being an Easterly line of said Grand Lakes Municipal Utility District No. 4 (as it existed December 20, 2004) to the Southwest corner of said Barker Dam Strip;

THENCE Easterly, along and with the Westerly current corporate limits of said City of Houston, same being a Southerly line of said United States Government Barker Reservoir (Barker Dam Strip), same further being a Northerly line of the Southerly portion of said Grand Lakes Municipal Utility District No. 4 (as it existed Decemberi20, 2004), passing the most Easterly Northeast corner of the Southern portion of Grand Lakes Municipal Utility District No. 4 (as it existed December 20, 2004), continuing along and with the Westerly current corporate limits of said City of Houston, same being a Southerly line of said United States Government Barker Reservoir (Barker Dam Strip), same being partly the Northerly line of the Southerly portion of said Grand Lakes Municipal Utility District No. 1 (as it existed Decemberi20, 2004), passing the Northwest corner of the Southerly portion of said Cinco Municipal Utility District No. 8 (as it existed December 20, 2004), continuing along and with the Westerly current corporate limits of said City of Houston, same being a Southerly line of said United States Government Barker Reservoir (Barker Dam Strip), same being the partly Northerly line of the Southerly portion of said Cinco Municipal Utility District No. 8 (as it existed December 20, 2004) to a point in the West line of the John Brock Survey, Abstract No. 4 for an angle point;

Wednesday, May 25, 2005 SENATE JOURNAL 3441

THENCE Northerly, along and with the Westerly current corporate limits of said City of Houston, same being a Southerly line of said United States Government Barker Reservoir, same further being the West line of said Brock Survey, an approximate distance of 62.8 feet to an angle point;

THENCE Easterly, along and with the Westerly current corporate limits of said City of Houston, same being a Southerly line of said United States Government Barker Reservoir, an approximate distance of 3,635 feet to an angle point;

THENCE Southerly, along and with the Westerly current corporate limits of said City of Houston, same being a Southerly line of said United States Government Barker Reservoir to a point in the Northerly right-of-way line of Farm To Market Highway 1093 (Westheimer Road),

THENCE Easterly, along and with the meanders of the Westerly current corporate limits of said City of Houston, same being the Northerly right-of-way line of said Highway 1093 to its intersection with the Easterly right-of-way line of Farm To Market Highway 1464;

THENCE Southerly, along and with the Easterly right-of-way line of said Highway 1464, passing the Northwest corner of West Harris County Municipal Utility District No. 4 (as it existed December 20, 2004), continuing along and with the Easterly right-of-way line of said Highway 1464, same being the Westerly line of said West Harris County Municipal Utility District No. 4 (as it existed December 20, 2004) to the intersection of the North right-of-way line of Alief-Clodine Road with said Easterly right-of-way line for the Southwest corner of said West Harris County Municipal Utility District No. 4 (as it existed December 20, 2004);

THENCE Easterly, along and with the North right-of-way line of said Alief-Clodine Road, same being the South line of said West Harris County Municipal Utility District No. 4 (as it existed December 20, 2004) to a point in the line common to Harris and Fort Bend Counties;

THENCE Southeasterly, along and with said county line to the South right-of-way line of said Alief-Clodine Road, same being the North line of Fort Bend County Municipal Utility District No. 30 (as it existed December 20, 2004);

THENCE along and with the Northerly and Easterly limits of said Fort Bend County Municipal Utility District No. 30 (as it existed December 20, 2004) the following courses and distances: (bearings and distances based on an exhibit of said Fort Bend County Municipal Utility District No. 30 prepared by Total Surveyors, Inc. and dated March 28, 2000, revised August 30, 2002);

South 568 52' 06" East, along and with said county line, a distance of 285.62 feet to an angle point;

South 008 03' 43" West, a distance of 369.13 feet to an interior corner;

North 858 19' 43" East, crossing said county line, a distance of 1,585.75 feet to the most Southerly Northeast corner;

South 018 33' 14" West, a distance of 244.10 feet to an angle point;

North 898 18' 17" East, a distance of 32.93 feet to an angle point;

South 018 33' 14" West, crossing said county line, a distance of 1,530.25 feet to an interior corner of said Fort Bend County Municipal Utility District No. 30 (as it existed December 20, 2004);

3442 79th Legislature — Regular Session 78th Day

South 018 15' 14" West, along and with the West line of the Chelford City Municipal Utility District (as it existed December 20, 2004), departing the East line of said Fort Bend County Municipal Utility District No. 30 (as it existed December 20, 2004), a distance of 463.95 feet to an interior corner of said Fort Bend County Municipal Utility District No. 30 (as it existed December 20, 2004);

South 018 35' 26" West, along and with the East line of said Fort Bend County Municipal Utility District No. 30 (as it existed December 20, 2004), a distance of 564.29 feet to an angle point;

South 018 33' 11" West, a distance of 1,028.29 feet to an angle point;

South 898 41' 05" West, a distance of 977.24 feet to an angle point;

South 008 14' 11" West, a distance of 3,248.96 feet to an angle point;

North 858 58' 03" East, a distance of 276.35 feet to an angle point;

North 898 56' 54" East, a distance of 564.71 feet to an angle point;

North 868 13' 12" East, a distance of 131.40 feet to an angle point;

North 868 09' 25" East, a distance of 59.92 feet to an angle point;

North 858 19' 10" East, a distance of 165.19 feet to an angle point;

North 818 39' 13" East, a distance of 248.15 feet to an angle point;

North 868 51' 58" East, along and with the South line of the Mission Bend Municipal Utility

District No. 1 (as it existed December 20, 2004), a distance of 307.84 feet to an angle point in the East line of said Fort Bend County Municipal Utility District No. 30 (as it existed December 20, 2004), same being the Northwest corner of the North Mission Glen Municipal Utility District (West Tract) (as it existed December 20, 2004);

THENCE Easterly, along and with the North line of said North Mission Glen Municipal Utility District (West Tract) (as it existed December 20, 2004), same being the South line of said Mission Bend Municipal Utility District No. 1 (as it existed December 20, 2004) to the Northeast corner of said North Mission Glen Municipal Utility District (West Tract) (as it existed December 20, 2004);

THENCE Southerly, along and with the East line of said North Mission Glen Municipal Utility District (West Tract) (as it existed December 20, 2004), same being a West line of said Mission Bend Municipal Utility District No. 1 (as it existed December 20, 2004), passing an interior Southwest corner of said Mission Bend Municipal Utility District No. 1 (as it existed December 20, 2004), continuing along and with the East line of said North Mission Glen Municipal Utility District (West Tract) (as it existed December 20, 2004) to a Westerly extension of the South right-of-way line of Forest Briar Drive;

THENCE Easterly, along and with said Westerly extension, passing the intersection of the East right-of-way line of Gaines Road with the South right-of-way line of said Forest Briar Drive, same being the Northwest corner of the Kingsbridge Municipal Utility District (as it existed December 20, 2004);

Wednesday, May 25, 2005 SENATE JOURNAL 3443

THENCE Easterly, along and with the South right-of-way line of said Forest Briar Drive, same being the North line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004) to its intersection with the South line of the North Mission Glen Municipal Utility District (East Tract) (as it existed December 20, 2004);

THENCE along and with the meanders of the Westerly and Northerly line of said North Mission Glen Municipal Utility District (East Tract) (as it existed December 20, 2004), same partly being an Easterly and Southerly Line of said Mission Bend Municipal Utility District No. 1 (as it existed December 20, 2004) to a point in the West right-of-way line of State Highway 6 for the common East corner of said North Mission Glen Municipal Utility District (East Tract) and Mission Bend Municipal Utility District No. 1 (as they existed December 20, 2004);

THENCE Westerly and Southerly, along and with the West line of said North Mission Glen Municipal Utility District (East Tract) (as it existed December 20, 2004) to its intersection with the North line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004);

THENCE Easterly, along and with the North line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004), crossing the line common to Harris and Fort Bend Counties to a point in the West right-of-way line of Sugarland-Howell Road for the Northeast corner of said Kingsbridge Municipal Utility District (as it existed December 20, 2004);

THENCE Southerly, along and with the West right-of-way line of Sugarland-Howell Road, same being the East line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004) to the North right-of-way line of Bissonnet Street, same being an interior North line of the Renn Road Municipal Utility District (as it existed December 20, 2004);

THENCE Westerly, along and with the North right-of-way line of Bissonnet Street, same being a South line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004), same further being an interior North line of said Renn Road Municipal Utility District (as it existed December 20, 2004) to a point in the line common to Harris and Fort Bend Counties for the most Westerly corner of said Renn Road Municipal Utility District (as it existed December 20, 2004), same being an interior corner in the East line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004);

THENCE Southeasterly, along and with said county line to the intersection of the centerline of said Sugarland-Howell Road with said county line for an angle point in the East line of said Kingsbridge Municipal Utility District (as it existed Decemberi20, 2004), same being an angle point in the West line of said Renn Road Municipal Utility District (as it existed December 20, 2004);

THENCE Southerly, along and with the centerline of said Sugarland-Howell Road, same being an East line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004) to the intersection of the South right-of-way line of said Bissonnet Street with said centerline for an angle point in the East line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004);

3444 79th Legislature — Regular Session 78th Day

THENCE Westerly, along and with the South right-of-way line of said Bissonnet Street to the intersection of the West right-of-way line of said Sugarland-Howell Road with said South right-of-way line for an angle point in the East line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004);

THENCE Southerly, along and with the West right-of-way line of Sugarland-Howell Road, same being the East line of said Kingsbridge Municipal Utility District (as it existed December 20, 2004) to a Westerly extension of the most Westerly South line of said Renn Road Municipal Utility District (as it existed December 20, 2004);

THENCE Easterly, along and with said Westerly extension passing a point in the East right-of-way line of said Sugarland-Howell Road for the most Westerly Southwest corner of said Renn Road Municipal Utility District (as it existed December 20, 2004), continuing Easterly and Southerly along and with the meanders of the Southwesterly and Southerly lines of said Renn Road Municipal Utility District (as it existed December 20, 2004) to the intersection of the West right-of-way line of Eldridge Road with the South line of said Renn Road Municipal Utility District (as it existed December 20, 2004);

THENCE Northerly, along and with the West right-of-way line of said Eldridge Road same being an Easterly line of said Renn Road Municipal Utility District (as it existed December 20, 2004) to a point in the line common to Harris and Fort Bend Counties;

THENCE Southeasterly, along and with said county line, same being a Southwesterly line of said Renn Road Municipal Utility District (as it existed December 20, 2004), passing a point in the Easterly right-of-way line of said Eldridge Road for an interior corner of said Renn Road Municipal Utility District (as it existed December 20, 2004), continuing along and with said county line, passing a point for the Northeast corner of Tract C of the Fort Bend County Municipal Utility District No. 2 (as it existed December 20, 2004), continuing along and with said county line, same being the Northeasterly line of said Tract C (as it existed December 20, 2004) to the intersection of a North current corporate limit of the City of Houston with said county line and being the most Easterly corner of said Tract C (as it existed December 20, 2004);

THENCE Westerly, along and with a South line of said Tract C (as it existed December 20, 2004), same being a Northerly current corporate limit of the City of Houston, a distance of 579.60 feet to an interior corner of said Tract C (as it existed December 20, 2004);

THENCE Southerly, along and with an East line of said Tract C (as it existed December 20, 2004), same being a Westerly current corporate limit of the City of Houston, at a distance of 227.76 feet passing the most Westerly Southeast corner of said Tract C (as it existed December 20, 2004), continuing along and with said Westerly corporate limits to an interior corner of said Westerly corporate limits;

THENCE Westerly, along and with a Northerly line of the current corporate limits of said City of Houston passing a point in the East right-of-way line of said Eldridge Road, continuing along and with a Westerly extension of said Northerly current corporate limit of said City of Houston to a point in the West right-of-way line of said Eldridge Road, same being the East line of Tract A of said Fort Bend County Municipal Utility District No. 2 (as it existed December 20, 2004);

Wednesday, May 25, 2005 SENATE JOURNAL 3445

THENCE Southerly, along and with the West right-of-way line of said Eldridge Road, same being the East line of said Tract A (as it existed December 20, 2004) to the Southeast corner of said Tract A (as it existed December 20, 2004);

THENCE, along and with the Southerly line of said Tract A (as it existed Decemberi20, 2004), same being a Northerly current corporate limit of the City of Houston the following courses and distances (bearings and distances based on the Fort Bend County Municipal Utility District No. 2 District Boundary Map prepared by Pate Engineers and dated November, 1996);

South 898 19' 00" West, a distance of 309.57 feet to an angle point;

North, a distance of 211.22 feet to an angle point;

West, a distance of 273.60 feet to an angle point;

North, a distance of 240.97 feet to a point;

North 898 52' 59" West to a Northwest corner of said Northerly corporate limit;

THENCE in a general Southeasterly direction, along and with the Westerly and Southerly current corporate limits of said City of Houston to a point in the West line of Tract B of said Fort Bend County Municipal Utility District No. 2 (as it existed December 20, 2004);

THENCE, along and with the boundary of said Tract B (as it existed December 20, 2004) the following courses and distances (bearings and distances based on the Fort Bend County Municipal Utility District No. 2 District Boundary Map prepared by Pate Engineers and dated November, 1996);

South 898 59' 49" East, a distance of 1,159.05 feet to the Northeast corner;

South 008 00' 25" West, a distance of 1,399.19 feet to an angle point;

South 008 01' 54" West, a distance of 867.48 feet to the Southeast corner;

North 898 58' 30" West, a distance of 1,995.67 feet to the Southwest corner;

North 008 00' 07" West, a distance of 618.91 feet to the Northerly Southeast corner;

South 898 57' 30" East, a distance of 699.62 feet to an interior corner;

North 008 07' 34" East, a distance of 250.22 feet to an interior corner in the South right-of-way line of Florence Road;

South 898 54' 40" East, along and with the South right-of-way line of said Florence Road, a distance of 136.12 feet to an interior corner;

North 008 02' 30" East, to a point in the North right-of-way line of said Florence Road;

THENCE Westerly, along and with the Northerly right-of-way line of said Florence Road, passing the most Westerly Southeast corner of Tract A of said Fort Bend County Municipal Utility District No. 2 (as it existed December 20, 2004), continuing along and with the North right-of-way line of said Florence Road, same being the South line of said Tract A (as it existed December 20, 2004) to the intersection of the East right-of-way line of Burney Road with said North right-of-way line, same being the Southwest corner of said Tract A (as it existed December 20, 2004);

3446 79th Legislature — Regular Session 78th Day

THENCE Southerly, along and with a Southerly extension of the East right-of-way line of said Burney Road to a point in the South right-of-way line of said Florence Road, same being the Northerly current corporate limits of the City of Sugar Land;

THENCE in a generally Southwesterly direction and along and with the meanders of the most Northerly and Westerly current corporate and/or extra territorial jurisdictional (ETJ) limits of the City of Sugar Land to the intersection of the North right-of-way line of U.S. Highway 90 with said limits and having approximate coordinates of North 298 36' 15" and West 958 40' 25";

THENCE Westerly, along and with the meanders of the North right-of-way line of said U.S. Highway 90, same being the North current ETJ limits of the City of Sugar Land to the intersection of the East right-of-way line of Farm To Market Highway 1464 with said North right-of-way line, same being the corner common with the current ETJ limits of the City of Houston, the City of Sugar Land, and the City of Richmond and having approximate coordinates of North 298 36' 08" and West 958 41' 00";

THENCE in a generally Northerly and Westerly direction and along and with the meanders of the most Easterly and Northerly current corporate and/or ETJ limits of the City of Richmond to a point in the centerline of Farm To Market Highway 723 and being the corner common with the current ETJ limits of the City of Fulshear, the City of Richmond, and the City of Rosenberg and having approximate coordinates of North 298 36' 00" and West 958 48' 40";

THENCE in a generally Westerly direction and along and with the meanders of the most Northerly current corporate and/or ETJ limits of the City of Rosenberg to the intersection of the West line of said Regulatory Area A as defined in the Fort Bend Subsidence District 2003 Regulatory Plan with said current ETJ limits of said City of Rosenberg and having approximate coordinates of North 298 35' 33" and West 958 55' 00";

THENCE North, along and with a meridian having a Longitude of West 958 55' 00", same being the West line of said Regulatory Area A to the POINT OF BEGINNING.

SAVE AND EXCEPT:

That portion of the right-of-way of said Eldridge Road contained within this description.

(b)iiIn addition to the territory described by Subsection (a) of this section, the authority includes all territory in Harris County of any district the territory of which includes, on the effective date of this Act, any of the territory described by Subsection (a) of this section, regardless of whether the territory contains noncontiguous parcels of land.

(c)iiNotwithstanding Subsections (a) and (b) of this section, the authority does not include any area that, on the effective date of this Act, is inside:

(1)iithe municipal limits or extraterritorial jurisdiction, as determined under Subchapter B, Chapter 42, Local Government Code, of the Cities of Stafford, Missouri City, Sugar Land, Richmond, Rosenberg, and Katy;

(2)iithe municipal limits of the City of Houston;

(3)iithe territory of the West Harris County Regional Water Authority;

(4)iithe boundaries of Waller County; or

Wednesday, May 25, 2005 SENATE JOURNAL 3447

(5)iithe boundaries of Fort Bend County Water Control and Improvement District No. 2.

(d)iiNotwithstanding Subsection (c)(3) of this section, the area within the following districts, as their boundaries existed on December 20, 2004, is included within the authority:

(1)iiHarris-Fort Bend Counties Municipal Utility District No. 1;

(2)iiHarris-Fort Bend Counties Municipal Utility District No. 5; and

(3)iiFort Bend County Municipal Utility District No. 30.

SECTIONi1.3.iiDESCRIPTION OF DIRECTOR PRECINCTS. (a) The authority includes seven single-member director precincts as follows:

(1)iiDirector Precinct No. 1 includes the territory that is contained in the following area:

BEGINNING at the intersection of an Easterly extension of the North line of the Fort Bend County Municipal Utility District No. 41 (East of Gaines Road) (as it existed on December 20, 2004) and State Highway 6;

THENCE Southerly, along and with the centerline of said Highway 6 to the intersection of the centerline of Voss Road with the centerline of said Highway 6, same being the Northerly current extra territorial jurisdictional (ETJ) limits of the City of Sugar Land;

THENCE in a generally Southwesterly direction and along and with the meanders of the most Northerly and Westerly current corporate and/or current ETJ limits of the City of Sugar Land to the intersection of the North right-of-way line of U.S. Highway 90 with said limits and having approximate coordinates of North 298 36' 15" and West 958 40' 25";

THENCE Westerly, along and with the meanders of the North right-of-way line of said U.S. Highway 90, same being the North current ETJ limits of the City of Sugar Land to the intersection of the East right-of-way line of Farm To Market Highway 1464 with said North right-of-way line, same being the corner common with the current ETJ limits of the City of Houston, said City of Sugar Land, and the City of Richmond and having approximate coordinates of North 298 36' 08" and West 958 41' 00";

THENCE in a generally Northerly and Westerly direction and along and with the meanders of the most Easterly and Northerly current corporate and/or current ETJ limits of said City of Richmond to a point in the centerline of Farm To Market Highway 723 and being the corner common with the current ETJ limits of the City of Fulshear, said City of Richmond, and the City of Rosenberg and having approximate coordinates of North 298 36' 00" and West 958 48' 40";