81R29027 ALB-D
By: McClendon, Rodriguez H.B. No. 3359
Substitute the following for H.B. No. 3359:
By: King of Parker C.S.H.B. No. 3359
A BILL TO BE ENTITLED
AN ACT
relating to a uniform and statewide 9-1-1 emergency services fee on
the retail sale of prepaid wireless telecommunications services to
consumers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 771.001(12), Health and Safety Code, is
amended to read as follows:
(12) "Wireless service provider" means a provider of
commercial mobile service under Section 332(d), Federal
Telecommunications Act of 1996 (47 U.S.C. Section 151 et seq.),
Federal Communications Commission rules, and the Omnibus Budget
Reconciliation Act of 1993 (Pub. L. No. 103-66), and includes a
provider of wireless two-way communication service,
radio-telephone communications related to cellular telephone
service, network radio access lines or the equivalent, and personal
communication service. The term does not include a provider of:
(A) a service whose users do not have access to
9-1-1 service;
(B) a communication channel used only for data
transmission;
(C) a wireless roaming service or other nonlocal
radio access line service; [or]
(D) a private telecommunications service; or
(E) a prepaid wireless telecommunications
service, as defined by Section 771.081, only to the extent of the
sale or provision of the service.
SECTION 2. Section 771.032, Health and Safety Code, is
amended to read as follows:
Sec. 771.032. APPLICATION OF SUNSET ACT. (a) The
Commission on State Emergency Communications is subject to Chapter
325, Government Code (Texas Sunset Act). Unless continued in
existence as provided by that chapter, the commission is abolished
and this chapter expires September 1, 2011.
(b) As part of the Sunset Advisory Commission's review under
Subsection (a), the Sunset Advisory Commission, in its report to
the 82nd Legislature, shall include:
(1) the effect of the prepaid wireless 9-1-1 emergency
services fee on revenues collected and the extent to which those
revenues increased or decreased total revenues attributable to
wireless telecommunications services; and
(2) whether the total of all revenues received from
9-1-1 services fees adequately fund public safety in this state at
the time the review is conducted and whether the 9-1-1 services fees
will continue to adequately fund public safety in future years.
SECTION 3. Section 771.056(d), Health and Safety Code, is
amended to read as follows:
(d) If the commission approves the plan, it shall allocate
to the region from the money collected under Sections 771.071,
771.0711, [and] 771.072, and 771.082 and appropriated to the
commission the amount that the commission considers appropriate to
operate 9-1-1 service in the region according to the plan and
contracts executed under Section 771.078.
SECTION 4. Section 771.075, Health and Safety Code, is
amended to read as follows:
Sec. 771.075. USE OF REVENUE. Except as provided by Section
771.0751, 771.0753, 771.072(e), 771.072(f), [or] 771.073(e), or
771.082(g), fees and surcharges collected under this subchapter and
Subchapter D-1 may be used only for planning, development,
provision, and enhancement of the effectiveness of 9-1-1 service as
approved by the commission.
SECTION 5. Subchapter D, Chapter 771, Health and Safety
Code, is amended by adding Section 771.0753 to read as follows:
Sec. 771.0753. USE OF PREPAID WIRELESS 9-1-1 EMERGENCY
SERVICES FEE IN CERTAIN COUNTIES. (a) This section applies only to
the use of fees and surcharges collected under Subchapter D-1 in:
(1) the county that has the highest population within
a region subject to Subchapter D-1; or
(2) a county subject to Subchapter D-1 with a
population of at least 700,000.
(b) In addition to use authorized or required by this
subchapter, fees collected under Subchapter D-1 may be used for any
costs considered necessary by the commission and attributable to:
(1) designing a 9-1-1 system; or
(2) obtaining and maintaining equipment and personnel
necessary to establish and operate:
(A) a public safety answering point and related
operations; or
(B) other related answering points and
operations.
SECTION 6. Sections 771.077(a), (d), and (e), Health and
Safety Code, are amended to read as follows:
(a) The comptroller may establish collection procedures to
collect past due amounts and may recover the costs of collection
from a service provider or business service user that fails to
timely deliver the fees and the equalization surcharge to the
comptroller. Subtitles A and B, Title 2, Tax Code, apply to the
administration and collection of amounts by the comptroller under
this subchapter. Section 771.084 applies to the administration and
collection of amounts by the comptroller under Subchapter D-1.
(d) The comptroller shall:
(1) remit to the commission money collected under this
section for fees provided by Section 771.0711 and associated late
penalties;
(2) deposit to the 9-1-1 services fee account any
money collected under this section for fees provided by Section
771.071 and associated late penalties; [and]
(3) deposit to the account as authorized by Section
771.072 any money collected under this section for fees provided by
Section 771.072 and associated late penalties; and
(4) remit to the commission any money collected under
this section for fees provided by Section 771.082 and associated
late penalties.
(e) The commission shall:
(1) deposit or distribute the money remitted under
Subsection (d)(1) as Section 771.0711 provides for fees received
under that section; [and]
(2) distribute the money remitted under Subsection
(d)(2) and appropriated to the commission under contracts as
provided by Section 771.078(b)(1); and
(3) deposit or distribute the money remitted under
Subchapter D-1 as Section 771.082 provides for fees received under
that section.
SECTION 7. Section 771.078(b), Health and Safety Code, is
amended to read as follows:
(b) In making contracts under this section, the commission
shall ensure that each regional planning commission receives money
for 9-1-1 service in three [two] separately computed amounts as
provided by this subsection. The commission must provide each
regional planning commission with:
(1) an amount of money equal to the total of the
revenue from the emergency service fees collected under Section
771.071 that is deposited in the treasury and appropriated to the
commission multiplied by a fraction, the numerator of which is the
amount of those fees collected from the region and the denominator
of which is the total amount of those fees collected in this state;
[and]
(2) an amount of money equal to the total of the
revenue from the emergency service fee for wireless
telecommunications connections under Section 771.0711 that is
deposited in the treasury and appropriated to the commission
multiplied by a fraction, the numerator of which is the population
of the region and the denominator of which is the population of this
state; and
(3) an amount of money equal to the total of the
revenue from the prepaid wireless 9-1-1 emergency services fee
under Section 771.082 that is deposited in the treasury and
appropriated to the commission multiplied by a fraction, the
numerator of which is the population of the region and the
denominator of which is the population of this state.
SECTION 8. Section 771.079(b), Health and Safety Code, is
amended to read as follows:
(b) The account consists of:
(1) fees deposited in the fund as provided by Sections
771.071, [and] 771.0711, and 771.082; and
(2) notwithstanding Section 404.071, Government Code,
all interest attributable to money held in the account.
SECTION 9. Chapter 771, Health and Safety Code, is amended
by adding Subchapter D-1 to read as follows:
SUBCHAPTER D-1. PREPAID WIRELESS 9-1-1 EMERGENCY SERVICES FEE
Sec. 771.081. DEFINITIONS. In this subchapter:
(1) "Consumer" means a person who purchases prepaid
wireless telecommunications service in a retail transaction.
(2) "Prepaid wireless 9-1-1 emergency services fee"
means the fee a seller collects from a consumer in the amount
required under Section 771.082.
(3) "Prepaid wireless telecommunications service"
means a wireless telecommunications service that allows a caller to
access 9-1-1 emergency communications services that is paid for in
advance at the time of purchase and that is sold:
(A) in predetermined units or dollars, the number
of which declines with use in a known amount; or
(B) on a time period basis.
(4) "Retail transaction" means an individual purchase
of a prepaid wireless telecommunications service from a seller for
any purpose other than resale.
(5) "Seller" means a person who sells prepaid wireless
telecommunications service to any person. The term includes
"seller" and "retailer" as defined by Section 151.008, Tax Code.
(6) "Wireless telecommunications service" means
commercial mobile radio service as defined by 47 C.F.R. Section
20.3.
Sec. 771.082. PREPAID WIRELESS 9-1-1 EMERGENCY SERVICES
FEE. (a) A prepaid wireless 9-1-1 emergency services fee shall be
collected by the seller from the consumer at the time of and with
respect to each retail transaction of prepaid wireless
telecommunications service occurring in this state. The amount of
the prepaid wireless 9-1-1 emergency services fee shall be either
separately stated on an invoice, receipt, or other similar document
that is provided to the consumer by the seller, or otherwise
disclosed to the consumer by the seller.
(b) The prepaid wireless 9-1-1 emergency services fee is two
percent of the cost of each prepaid wireless telecommunications
service purchased, regardless of whether the service was purchased
in person, by telephone, through the Internet, or by any other
method. Each service purchased is a separate item for purposes of
calculating a fee under this subsection.
(c) For purposes of Subsection (a), a retail transaction
that is effected in person by a consumer at a business location of
the seller shall be treated as occurring in this state if that
business location is in this state. Any other retail transaction,
including a transaction over the Internet or via telecommunications
service, shall be treated as occurring in this state for purposes of
Subsection (a) if the transaction would be treated as occurring in
this state under Section 151.061, Tax Code.
(d) The prepaid wireless 9-1-1 emergency services fee is the
liability of the consumer and not of the seller or of any provider,
except that the seller shall be liable to remit all prepaid wireless
service fees that the seller collects from consumers as provided by
Section 771.084, including all such charges that the seller is
deemed to collect where the amount of the charge has not been
separately stated on an invoice, receipt, or other similar document
provided to the consumer by the seller.
(e) The fee imposed under this subchapter is in addition to
the taxes imposed under Chapter 151, Tax Code.
(f) The amount of the prepaid wireless 9-1-1 emergency
services fee that is collected by a seller from a consumer, whether
or not such amount is separately stated on an invoice, receipt, or
other similar document provided to the consumer by the seller,
shall not be included in the base for measuring any tax, fee,
surcharge, or other charge that is imposed by this state, any
political subdivision of this state, or any intergovernmental
agency.
(g) A seller may deduct and retain one percent of prepaid
wireless 9-1-1 emergency services fees that it collects to offset
its costs in administering this fee.
Sec. 771.083. EXCEPTIONS TO APPLICABILITY OF CHAPTER AND
LIMITATIONS OF LIABILITY. (a) The comptroller shall establish
procedures for a seller to document that a sale is not a retail
transaction under this subchapter. The procedures shall
substantially conform to procedures for documenting a sale for
resale under Chapter 151, Tax Code.
(b) A provider or seller of prepaid wireless
telecommunications service is not liable for damages to any person
resulting from or incurred in connection with the provision of, or
the failure to provide, 9-1-1 emergency service, or for identifying
or failing to identify the telephone number, address, location, or
name associated with any person or device that is accessing or
attempting to access 9-1-1 emergency service, unless the act or
omission proximately causing the claim, damage, or loss constitutes
gross negligence, recklessness, or intentional misconduct.
(c) A provider or seller of prepaid wireless
telecommunications service is not liable for damages to any person
resulting from or incurred in connection with the provision of any
lawful assistance to any investigative or law enforcement officer
of the United States, this or any other state, or any political
subdivision of this or any other state in connection with any lawful
investigation or other law enforcement activity by such
investigative or law enforcement officer unless the act or omission
proximately causing the claim, damage, or loss constitutes gross
negligence, recklessness, or intentional misconduct.
(d) Information that a provider or seller of prepaid
wireless telecommunications service is required to furnish to a
governmental entity in providing or selling 9-1-1 emergency service
is confidential and exempt from disclosure under Chapter 552,
Government Code. A provider or seller of prepaid wireless
telecommunications service is not liable to any person who uses a
9-1-1 emergency service created under this chapter for the release
of information furnished by the provider or seller of prepaid
wireless telecommunications service in providing or selling 9-1-1
emergency service. Information that is confidential under this
section may be released only for budgetary calculation purposes and
only in aggregate form so that no provider-specific or
seller-specific information may be extrapolated.
(e) In addition to the exemption from liability provided by
Subsections (b), (c), and (d), each provider and seller of prepaid
wireless telecommunications service is entitled to any other
exemption from liability under this chapter, if any, that is
provided to wireless service providers.
Sec. 771.084. APPLICATION OF PROVISIONS OF TAX CODE.
Except as otherwise provided by this subchapter:
(1) the fee imposed by this subchapter is
administered, imposed, collected, and enforced in the same manner
as a tax under Chapter 151, Tax Code, is administered, imposed,
collected, and enforced; and
(2) the provisions applicable to the sales tax imposed
under Subchapter C, Chapter 151, Tax Code, apply to the fee imposed
by this subchapter.
Sec. 771.085. ALLOCATION OF FEE. (a) After deducting an
amount not greater than 10 percent of collected charges, as
determined under Subsection (c), the comptroller shall deposit the
money from the fees imposed by this subchapter, other than
penalties and interest, to the credit of the 9-1-1 services fee
account in the general revenue fund. Until deposited to the credit
of the 9-1-1 services fee account as required by Subsection (b),
money the comptroller collects under this subchapter remains in a
trust fund with the state treasury.
(b) Money collected under this subchapter may be used only
for services related to 9-1-1 and emergency services, including
automatic number identification and automatic location information
services. Not later than the 15th day after the last day of the
month in which the money is collected, the commission shall
distribute to each emergency communication district that does not
participate in the state system a portion of the money that bears
the same proportion to the total amount collected that the
population in the area served by the district bears to the
population of the state. The remaining money collected under this
subchapter shall be deposited to the 9-1-1 services fee account in
the general revenue fund.
(c) The commission shall annually determine by rule the
percentage of collected charges, not to exceed 10 percent, that
under Subsection (a) shall be deducted by the comptroller and
allocated as if collected under Section 771.072.
Sec. 771.086. EXCLUSIVITY AND APPLICABILITY OF PREPAID
WIRELESS 9-1-1 EMERGENCY SERVICES FEE. (a) The prepaid wireless
emergency services fee shall be the only 9-1-1 funding obligation
imposed with respect to prepaid wireless telecommunications
service in this state, and no tax, fee, surcharge, or other charge
shall be imposed by this state, any political subdivision of this
state, or any intergovernmental agency, for 9-1-1 funding purposes,
on any provider, seller, or consumer with respect to the sale,
purchase, use, or provision of prepaid wireless telecommunications
service.
(b) The emergency service fee for wireless
telecommunications connections under Section 771.0711 applies to
wireless telecommunications service that is not subject to the
prepaid wireless 9-1-1 emergency services fee under this
subchapter.
SECTION 10. This Act takes effect January 1, 2010.