HBA-ATS C.S.S.B. 1647 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 1647 By: Cain Transportation /19/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE In 1997, the legislature abolished the Texas Turnpike Authority (TTA) as an independent agency and transferred specifically designated property, assets, and liabilities, and related duties and obligations to the newly established North Texas Tollway Authority (NTTA), a regional toll authority that is a political subdivision of the state. Concurrently, the legislature created the Texas Turnpike Authority division of the Texas Department of Transportation (authority) to succeed to all other assets, rights, and obligations that were not transferred to the TTA. The authority has its own enabling statute, Chapter 361 (Texas Turnpike Authority), Transportation Code, and a board of directors appointed by the governor, yet it operates as a division of TxDOT. Regional toll authorities are now governed by Chapter 366 (Regional Tollway Authorities), Transportation Code. While Chapter 366 generally mirrors Chapter 361, there are unintended inconsistencies. C.S.S.B. 1647 eliminates inconsistencies between the two chapters and clarifies the rights and obligations of the new authority in several other areas. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill modifies rulemaking authority previously delegated to the Texas Turnpike Authority division of the Texas Department of Transportation in SECTION 5 (Section 361.042, Transportation Code) and SECTION 21 (Section 361.306, Transportation Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 284.008(a), Transportation Code, to authorize the Texas Transportation Commission (commission) to operate any part of a project under Chapter 284 (Causeways, Bridges, Tunnels, Turnpikes, and Highways in Certain Counties), Transportation Code, as part of the state highway system or to authorize the lease, sale, or conveyance of any part of a project to the Texas Turnpike Authority division of the Texas Department of Transportation (authority). The substitute makes conforming changes. SECTION 2. Amends Section 361.001(4), Transportation Code, to define "turnpike project" as a highway, rather than a toll highway, and adds a service road, ramp, a parking area or structure, rest stop, park, and any other improvement or amenity the authority considers necessary, useful, or beneficial for the operation of a turnpike project as permissible turnpike projects. SECTION 3. Amends Section 361.004, Transportation Code, to provide that the cost of acquisition, construction, improvement, extension, or expansion of a turnpike project includes new costs such as the actual acquisition of the project, appraisals, legal expenses, and expenses related to the initial operation of the turnpike project. Authorizes the reimbursement of costs that are incurred before the issuance of bonds for a turnpike project for which bonds are issued to derive from the proceeds of the sale of the bonds. SECTION 4. Amends Sections 361.031(b)-(g), Transportation Code, to remove the requirement that approval of the Texas Transportation Commission (commission) is necessary for the Texas Turnpike Authority division of the Texas Department of Transportation (authority) to perform or procure from other service providers roadway maintenance, toll revenue collection, or traffic operations. Redesignates existing Subsections (d)-(g) to (c)-(f). Makes conforming changes. SECTION 5. Amends Section 361.042(b), Transportation Code, to authorize the authority to: _adopt and enforce rules, without the concurrence of the commission, not inconsistent with this chapter (Texas Turnpike Authority) for the use of any turnpike project, including rules establishing speed limits and maximum allowed vehicle and load weight limits for turnpike projects; _engage in marketing, advertising and other activities to promote the development and use of turnpike projects, and may enter into contracts or agreements necessary to procure marketing, advertising or other promotional services from outside service providers; and _form, develop, or utilize a corporation created under Chapter 431 (Texas Transportation Corporation Act) for the promotion and development of turnpike projects. Makes conforming changes. SECTION 6. Amends Section 361.054, Transportation Code, to require the authority to have an independent certified public accountant (CPA), rather than a CPA, audit the authority's books and accounts at least annually. Provides that this section does not affect the ability of a state agency to audit the authority's books and accounts. SECTION 7. Amends Section 361.131, Transportation Code, to provide that the authority, acting by and through the board of directors of the authority (board), has the same powers and is authorized to use the same procedures as the commission or the Texas Department of Transportation (TxDOT) in acquiring property. SECTION 8. Amends Sections 361.132(a) and (c), to change all references from the "board" to "authority." SECTION 9. Amends Section 361.135(b), Transportation Code, to authorize the board to condemn real property that the authority determines is: _necessary to restore public or private property damaged or destroyed, including property necessary or convenient to mitigate an environmental effect that directly results from the construction, operation, or maintenance of a turnpike project; _necessary for service roads; or _necessary to provide proper drainage and ground slope for a turnpike project. Makes conforming changes. SECTION 10. Amends Section 361.137, Transportation Code, by adding Subsection (f), to require a case, after a declaration of taking is filed, to proceed as any other case in eminent domain under Chapter 21 (Eminent Domain), Property Code. SECTION 11. Amends Section 361.141(a), Transportation Code, to prohibit the authority from paying compensation for streets, highways, or alleys, in addition to public real property, parkways, or reservations it takes, except for the enumerated exceptions. SECTION 12. Amends Section 361.171, Transportation Code, by adding Subsection (g), as follows: (g) Authorizes the proceeds of a bond issue, in addition to other permitted uses, to be used to pay costs incurred before the issuance of the bonds, including costs of environmental review, design, planning, acquisition of property, relocation assistance, construction, and operation. SECTION 13. Amends Section 361.179(a), Transportation Code, to authorize the authority, notwithstanding anything in Chapter 202 (Control of Highway Assets), Transportation Code, to the contrary, to contract with a person for the use of part of a turnpike project or lease or sell part of a turnpike project, including the right-of-way adjoining the paved portion, for any purpose, including placing on the adjoining right-of-way telecommunications facilities and equipment. SECTION 14. Amends Section 361.181(a), Transportation Code, to authorize the authority to pay the expenses of studying the cost and feasibility and any other expenses relating to the preparation and issuance of turnpike revenue bonds for the construction of a proposed turnpike project by using money received from TxDOT for feasibility studies undertaken at the request of the commission. SECTION 15. Amends Section 361.182, Transportation Code, by adding Subsections (g) and (h), as follows: (g) Authorizes the commission to request that the authority conduct a feasibility study for a proposed turnpike project. Requires the expenses of any study requested by the commission to be paid for by TxDOT. Requires TxDOT, if the turnpike project is constructed, to be reimbursed for money paid to the authority from the proceeds of turnpike revenue bonds issued for, or other proceeds that may be used for, the construction, improvement, extension, expansion, or operation of the project. (h) Requires interest and income earned on money in the Texas Turnpike Authority feasibility study fund to be deposited in that fund. SECTION 16. Amends Section 361.232(c), Transportation Code, to require the authority, if feasible, to provide access to properties previously abutting a county or public road that is taken for a turnpike project, rather than to move and replace with an equal or better facility a county or other public road that a turnpike project affects or severs. Requires the authority to pay abutting property owners the expenses or, rather than and, any resulting damages for denial of access to the road. Makes a conforming and nonsubstantive change. SECTION 17. Amends Section 361.234, Transportation Code, by adding Subsections (d) and (e) and redesignating Subsections (d), (e), and (f), to Subsections (f), (g), and (h), as follows: (d) Authorizes the authority to reduce the total costs to be paid by the authority by 10 percent for each 30-day period or portion of a 30-day period that the relocation exceeds the limit specified by the authority unless the utility's failure to timely perform results from a material action or inaction by the authority or conditions that the authority agrees were beyond the utility's reasonable control. Requires the authority, if an owner or operator of a public utility facility does not timely remove or relocate the facility and the authority relocates the facility, to do so in a safe manner that complies with applicable law and utility construction standards recognized by the authority and that minimizes disruption of utility service and to notify the public utility of the relocation. Provides that relocation of the facility is at the expense of the public utility, but requires the authority to pay the relocation costs if it determines that the failure of the utility to timely relocate was the result of factors beyond the utility's control. (e) Provides that Subchapter B (Provisions Applying to Gas Utilities), Chapter 181 (Miscellaneous Powers and Duties of Utilities), Utilities Code, applies to the laying and maintenance of pipes, mains, conductors, and other facilities used to conduct gas by a gas utility through, under, along, across, and over a turnpike project constructed by the authority. Provides that the authority has the powers and duties assigned to the commission by Subchapter B, Chapter 181, Utilities Code. (f) Makes conforming changes to existing statutory text. (g) No change. (h) No change. SECTION 18. Amends the heading to Subchapter H, Chapter 361, Transportation Code, to read "Transfer or Acquisition of Turnpike Project." SECTION 19. Amends Section 361.282(b), Transportation Code, to specify that a turnpike project transferred upon the approval of the authority, the commission, and the governor must be the authority's turnpike project. SECTION 20. Amends Subchapter H, Chapter 361, Transportation Code, by adding Section 361.284, to authorize the authority, with approval from the commission, to purchase or acquire a turnpike project from a county, municipality, regional tollway authority or Chapter 431 corporation. Authorizes the financing of the cost of the acquisition in the same manner as an authority's project is financed under Subchapter E (Financing of Turnpike Projects), to the extent possible. SECTION 21. Amends Section 361.306(a), Transportation Code, to authorize the authority's rules to impose a fee for reviewing proposals for private involvement in a turnpike project. SECTION 22. Amends Sections 545.354(e), (f), and (g), Transportation Code, to delete Subsection (e), providing that the specified sections relating to speed limits do not apply to any part of a turnpike project. Redesignates existing Subsections (f) and (g) to (e) and (f). SECTION 23. Amends Section 621.102, Transportation Code, by amending Subsection (a) and adding Subsection (h), as follows: (a) Makes a conforming change. (h) Authorizes the authority, in the same manner as the commission, to set the maximum gross weight of a vehicle and its load, the maximum gross weight of a combination of vehicles and loads, maximum axle load, or maximum wheel load that may be moved over a turnpike project as defined in Section 361.001 (Definitions), Transportation Code. SECTION 24. Effective date: September 1, 1999. SECTION 25. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 1647 differs from the original bill in the caption by providing that this Act relates to the powers and duties of the Texas Turnpike Authority division of the Texas Department of Transportation, rather than to the authority of the Texas Turnpike Authority division of the Texas Department of Transportation to manage its affairs, to the clarification of certain statutory provisions, and to the elimination of inconsistencies within the affected provisions. C.S.S.B. 1647 differs from the original bill by conforming to Legislative Council format. C.S.S.B. 1647 differs from the original bill by adding a new SECTION 1 that amends Section 284.008(a), Transportation Code, to authorize the Texas Transportation Commission (commission) to operate any part of a project under Chapter 284 (Causeways, Bridges, Tunnels, Turnpikes, and Highways in Certain Counties), Transportation Code, as part of the state highway system or to authorize the lease, sale, or conveyance of any part of a project to the Texas Turnpike Authority division of the Texas Department of Transportation (authority). The substitute makes conforming changes. C.S.S.B. 1647 differs from the original bill by redesignating SECTIONS 1 through 4 of the original as SECTIONS 2 through 5. In redesignated SECTION 3 (proposed Section 361.004(b), Transportation Code), the substitute differs from the original by specifying that the costs attributable to a turnpike project incurred before the issuance of bonds that are authorized to be reimbursed from the proceeds of the sale of the bonds are for turnpike projects for which bonds are issued. In redesignated SECTION 5 (existing Section 361.042(b), Transportation Code), the substitute differs from the original by removing the phrase "without limitation," in reference to the authority's authority to adopt and enforce rules establishing speed limits and maximum allowed vehicle and load weight limits for turnpike projects. The substitute also differs from the original by authorizing the authority to form, develop or utilize, rather than to form, develop and utilize, a corporation created under Chapter 431 (Texas Transportation Corporation Act) for the promotion and development of turnpike projects. The substitute makes a nonsubstantive change. C.S.S.B. 1647 differs from the original bill adding a new SECTION 6 that amends Section 361.054, Transportation Code, to require the authority to have an independent certified public accountant (CPA), rather than a CPA, audit the authority's books and accounts at least annually. The substitute also provides that existing Section 361.054 (Audit) does not affect the ability of a state agency to audit the authority's books and accounts. C.S.S.B. 1647 differs from the original bill by redesignating SECTIONS 5 through 15 of the original as SECTIONS 7 through 17. In redesignated SECTION 10 (proposed Section 361.137(f), Transportation Code), the substitute differs from the original by removing the provision that the declaration of taking be filed with the petition. The substitute also makes a nonsubstantive change. In redesignated SECTION 12 (proposed Section 361.171(g), Transportation Code), the substitute differs from the original by making a nonsubstantive change. In redesignated SECTION 13 (existing Section 361.179(a), Transportation Code), the substitute differs from the original by making nonsubstantive changes. In redesignated SECTION 14 (existing Section 361.181(a), Transportation Code), the substitute differs from the original by specifying that the authority is authorized to pay certain expenses, notwithstanding the operation of Section 361.179 or any other provision of Chapter 361 to the contrary. The substitute also differs by making nonsubstantive changes. In redesignated SECTION 15, the substitute differs from the original by adding Section 361.182(h), Transportation Code, to require interest and income earned on money in the Texas Turnpike Authority feasibility study fund to be deposited in that fund. In redesignated SECTION 17 (Section 361.234(d), Transportation Code), the substitute differs from the original by authorizing the authority to reduce the total costs to be paid by the authority by 10 percent for each 30-day period or portion of a 30-day period that the relocation exceeds the limit specified by the authority unless the utility's failure to timely perform results from a material action or inaction by the authority or conditions that the authority agrees were beyond the utility's reasonable control. The original bill authorized the authority under existing Section 361.234(b) to reduce the total costs to be paid by the authority by 10 percent for each 30-day period or portion of a 30-day period by which the relocation exceeds the limit specified by the authority. The substitute makes a nonsubstantive change. In Section 361.234(d), the substitute also differs from the original by requiring the authority, if an owner or operator of a public utility facility does not timely remove or relocate the facility and the authority relocates the facility, to do so in a safe manner that complies with applicable law and utility construction standards recognized by the authority and that minimizes disruption of utility service and to notify the public utility of the relocation, rather than authorizing the authority, if an owner or operator of a public utility facility does not timely remove or relocate, to do so at the expense of the public utility. Like the original, the substitute provides that relocation of the facility is at the expense of the public utility, but adds the exception that the authority is required to pay the relocation costs if it determines that the failure of the utility to timely relocate was the result of factors beyond the utility's control. The substitute differs from the original in redesignated SECTION 17 by adding Section 361.234(e) to provide that Subchapter B (Provisions Applying to Gas Utilities), Chapter 181 (Miscellaneous Powers and Duties of Utilities), Utilities Code, applies to the laying and maintenance of pipes, mains, conductors, and other facilities used to conduct gas by a gas utility through, under, along, across, and over a turnpike project constructed by the authority. The substitute also provides that the authority has the powers and duties assigned to the commission by Subchapter B, Chapter 181, Utilities Code. The substitute redesignates proposed Sections 361.234(e), (f), and (g), to Sections 361.234(f), (g), and (h). In redesignated Section 361.234(f), the substitute differs from the original by making conforming changes to existing statutory text. C.S.S.B. 1647 differs from the original bill by adding a new SECTION 18 that amends the heading to Subchapter H, Chapter 361, Transportation Code, to read "Transfer or Acquisition of Turnpike Project." C.S.S.B. 1647 differs from the original bill by adding a new SECTION 19 that amends Section 361.282(b), Transportation Code, to specify that a turnpike project transferred upon the approval of the authority, the commission, and the governor, be transferred by the authority. C.S.S.B. 1647 differs from the original bill by adding a new SECTION 20 that amends Subchapter H, Chapter 361, Transportation Code, by adding Section 361.284, to authorize the authority, with approval from the commission, to purchase or acquire a turnpike project from a county, municipality, regional tollway authority or Chapter 431 corporation, and to authorize the financing of the cost of the acquisition in the same manner as an authority's project is financed under Subchapter E, to the extent possible. C.S.S.B. 1647 differs from the original bill by redesignating SECTIONS 16 through 20 of the original as SECTIONS 21 through 25. In redesignated SECTION 21 (existing Section 361.306(a), Transportation Code), the substitute differs from the original by making nonsubstantive changes. In redesignated SECTION 22 (Section 545.354, Transportation Code), the substitute differs from the original by adding a reference to Subsection (g) to conform with Legislative Council format. In redesignated SECTION 23 (existing Section 621.102(a), Transportation Code), the substitute differs from the original by making a nonsubstantive change. In proposed Section 621.102(h), the substitute differs from the original by removing the provision requiring the authority to be subject to the same restrictions and to follow the same procedures as are set forth in Section 621.102 as being applicable to the commission. The substitute also differs by authorizing the authority, in the same manner as the commission, rather than requiring the authority to have the authority, to set the maximum gross weight of a vehicle and its load, the maximum gross weight of a combination of vehicles and loads, rather than vehicles and loads, maximum axle load, or maximum wheel load that may be moved over a turnpike project as defined in Section 361.001 (Definitions), Transportation Code.