Texas 2009 - 81st Regular

Texas House Bill HB3359 Compare Versions

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1	1	81R29027 ALB-D
2	2	By: McClendon, Rodriguez H.B. No. 3359
3	3	Substitute the following for H.B. No. 3359:
4	4	By: King of Parker C.S.H.B. No. 3359
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to a uniform and statewide 9-1-1 emergency services fee on
10	10	the retail sale of prepaid wireless telecommunications services to
11	11	consumers.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 771.001(12), Health and Safety Code, is
14	14	amended to read as follows:
15	15	(12) "Wireless service provider" means a provider of
16	16	commercial mobile service under Section 332(d), Federal
17	17	Telecommunications Act of 1996 (47 U.S.C. Section 151 et seq.),
18	18	Federal Communications Commission rules, and the Omnibus Budget
19	19	Reconciliation Act of 1993 (Pub. L. No. 103-66), and includes a
20	20	provider of wireless two-way communication service,
21	21	radio-telephone communications related to cellular telephone
22	22	service, network radio access lines or the equivalent, and personal
23	23	communication service. The term does not include a provider of:
24	24	(A) a service whose users do not have access to
25	25	9-1-1 service;
26	26	(B) a communication channel used only for data
27	27	transmission;
28	28	(C) a wireless roaming service or other nonlocal
29	29	radio access line service; [or]
30	30	(D) a private telecommunications service; or
31	31	(E) a prepaid wireless telecommunications
32	32	service, as defined by Section 771.081, only to the extent of the
33	33	sale or provision of the service.
34	34	SECTION 2. Section 771.032, Health and Safety Code, is
35	35	amended to read as follows:
36	36	Sec. 771.032. APPLICATION OF SUNSET ACT. (a) The
37	37	Commission on State Emergency Communications is subject to Chapter
38	38	325, Government Code (Texas Sunset Act). Unless continued in
39	39	existence as provided by that chapter, the commission is abolished
40	40	and this chapter expires September 1, 2011.
41	41	(b) As part of the Sunset Advisory Commission's review under
42	42	Subsection (a), the Sunset Advisory Commission, in its report to
43	43	the 82nd Legislature, shall include:
44	44	(1) the effect of the prepaid wireless 9-1-1 emergency
45	45	services fee on revenues collected and the extent to which those
46	46	revenues increased or decreased total revenues attributable to
47	47	wireless telecommunications services; and
48	48	(2) whether the total of all revenues received from
49	49	9-1-1 services fees adequately fund public safety in this state at
50	50	the time the review is conducted and whether the 9-1-1 services fees
51	51	will continue to adequately fund public safety in future years.
52	52	SECTION 3. Section 771.056(d), Health and Safety Code, is
53	53	amended to read as follows:
54	54	(d) If the commission approves the plan, it shall allocate
55	55	to the region from the money collected under Sections 771.071,
56	56	771.0711, [and] 771.072, and 771.082 and appropriated to the
57	57	commission the amount that the commission considers appropriate to
58	58	operate 9-1-1 service in the region according to the plan and
59	59	contracts executed under Section 771.078.
60	60	SECTION 4. Section 771.075, Health and Safety Code, is
61	61	amended to read as follows:
62	62	Sec. 771.075. USE OF REVENUE. Except as provided by Section
63	63	771.0751, 771.0753, 771.072(e), 771.072(f), [or] 771.073(e), or
64	64	771.082(g), fees and surcharges collected under this subchapter and
65	65	Subchapter D-1 may be used only for planning, development,
66	66	provision, and enhancement of the effectiveness of 9-1-1 service as
67	67	approved by the commission.
68	68	SECTION 5. Subchapter D, Chapter 771, Health and Safety
69	69	Code, is amended by adding Section 771.0753 to read as follows:
70	70	Sec. 771.0753. USE OF PREPAID WIRELESS 9-1-1 EMERGENCY
71	71	SERVICES FEE IN CERTAIN COUNTIES. (a) This section applies only to
72	72	the use of fees and surcharges collected under Subchapter D-1 in:
73	73	(1) the county that has the highest population within
74	74	a region subject to Subchapter D-1; or
75	75	(2) a county subject to Subchapter D-1 with a
76	76	population of at least 700,000.
77	77	(b) In addition to use authorized or required by this
78	78	subchapter, fees collected under Subchapter D-1 may be used for any
79	79	costs considered necessary by the commission and attributable to:
80	80	(1) designing a 9-1-1 system; or
81	81	(2) obtaining and maintaining equipment and personnel
82	82	necessary to establish and operate:
83	83	(A) a public safety answering point and related
84	84	operations; or
85	85	(B) other related answering points and
86	86	operations.
87	87	SECTION 6. Sections 771.077(a), (d), and (e), Health and
88	88	Safety Code, are amended to read as follows:
89	89	(a) The comptroller may establish collection procedures to
90	90	collect past due amounts and may recover the costs of collection
91	91	from a service provider or business service user that fails to
92	92	timely deliver the fees and the equalization surcharge to the
93	93	comptroller. Subtitles A and B, Title 2, Tax Code, apply to the
94	94	administration and collection of amounts by the comptroller under
95	95	this subchapter. Section 771.084 applies to the administration and
96	96	collection of amounts by the comptroller under Subchapter D-1.
97	97	(d) The comptroller shall:
98	98	(1) remit to the commission money collected under this
99	99	section for fees provided by Section 771.0711 and associated late
100	100	penalties;
101	101	(2) deposit to the 9-1-1 services fee account any
102	102	money collected under this section for fees provided by Section
103	103	771.071 and associated late penalties; [and]
104	104	(3) deposit to the account as authorized by Section
105	105	771.072 any money collected under this section for fees provided by
106	106	Section 771.072 and associated late penalties; and
107	107	(4) remit to the commission any money collected under
108	108	this section for fees provided by Section 771.082 and associated
109	109	late penalties.
110	110	(e) The commission shall:
111	111	(1) deposit or distribute the money remitted under
112	112	Subsection (d)(1) as Section 771.0711 provides for fees received
113	113	under that section; [and]
114	114	(2) distribute the money remitted under Subsection
115	115	(d)(2) and appropriated to the commission under contracts as
116	116	provided by Section 771.078(b)(1); and
117	117	(3) deposit or distribute the money remitted under
118	118	Subchapter D-1 as Section 771.082 provides for fees received under
119	119	that section.
120	120	SECTION 7. Section 771.078(b), Health and Safety Code, is
121	121	amended to read as follows:
122	122	(b) In making contracts under this section, the commission
123	123	shall ensure that each regional planning commission receives money
124	124	for 9-1-1 service in three [two] separately computed amounts as
125	125	provided by this subsection. The commission must provide each
126	126	regional planning commission with:
127	127	(1) an amount of money equal to the total of the
128	128	revenue from the emergency service fees collected under Section
129	129	771.071 that is deposited in the treasury and appropriated to the
130	130	commission multiplied by a fraction, the numerator of which is the
131	131	amount of those fees collected from the region and the denominator
132	132	of which is the total amount of those fees collected in this state;
133	133	[and]
134	134	(2) an amount of money equal to the total of the
135	135	revenue from the emergency service fee for wireless
136	136	telecommunications connections under Section 771.0711 that is
137	137	deposited in the treasury and appropriated to the commission
138	138	multiplied by a fraction, the numerator of which is the population
139	139	of the region and the denominator of which is the population of this
140	140	state; and
141	141	(3) an amount of money equal to the total of the
142	142	revenue from the prepaid wireless 9-1-1 emergency services fee
143	143	under Section 771.082 that is deposited in the treasury and
144	144	appropriated to the commission multiplied by a fraction, the
145	145	numerator of which is the population of the region and the
146	146	denominator of which is the population of this state.
147	147	SECTION 8. Section 771.079(b), Health and Safety Code, is
148	148	amended to read as follows:
149	149	(b) The account consists of:
150	150	(1) fees deposited in the fund as provided by Sections
151	151	771.071, [and] 771.0711, and 771.082; and
152	152	(2) notwithstanding Section 404.071, Government Code,
153	153	all interest attributable to money held in the account.
154	154	SECTION 9. Chapter 771, Health and Safety Code, is amended
155	155	by adding Subchapter D-1 to read as follows:
156	156	SUBCHAPTER D-1. PREPAID WIRELESS 9-1-1 EMERGENCY SERVICES FEE
157	157	Sec. 771.081. DEFINITIONS. In this subchapter:
158	158	(1) "Consumer" means a person who purchases prepaid
159	159	wireless telecommunications service in a retail transaction.
160	160	(2) "Prepaid wireless 9-1-1 emergency services fee"
161	161	means the fee a seller collects from a consumer in the amount
162	162	required under Section 771.082.
163	163	(3) "Prepaid wireless telecommunications service"
164	164	means a wireless telecommunications service that allows a caller to
165	165	access 9-1-1 emergency communications services that is paid for in
166	166	advance at the time of purchase and that is sold:
167	167	(A) in predetermined units or dollars, the number
168	168	of which declines with use in a known amount; or
169	169	(B) on a time period basis.
170	170	(4) "Retail transaction" means an individual purchase
171	171	of a prepaid wireless telecommunications service from a seller for
172	172	any purpose other than resale.
173	173	(5) "Seller" means a person who sells prepaid wireless
174	174	telecommunications service to any person. The term includes
175	175	"seller" and "retailer" as defined by Section 151.008, Tax Code.
176	176	(6) "Wireless telecommunications service" means
177	177	commercial mobile radio service as defined by 47 C.F.R. Section
178	178	20.3.
179	179	Sec. 771.082. PREPAID WIRELESS 9-1-1 EMERGENCY SERVICES
180	180	FEE. (a) A prepaid wireless 9-1-1 emergency services fee shall be
181	181	collected by the seller from the consumer at the time of and with
182	182	respect to each retail transaction of prepaid wireless
183	183	telecommunications service occurring in this state. The amount of
184	184	the prepaid wireless 9-1-1 emergency services fee shall be either
185	185	separately stated on an invoice, receipt, or other similar document
186	186	that is provided to the consumer by the seller, or otherwise
187	187	disclosed to the consumer by the seller.
188	188	(b) The prepaid wireless 9-1-1 emergency services fee is two
189	189	percent of the cost of each prepaid wireless telecommunications
190	190	service purchased, regardless of whether the service was purchased
191	191	in person, by telephone, through the Internet, or by any other
192	192	method. Each service purchased is a separate item for purposes of
193	193	calculating a fee under this subsection.
194	194	(c) For purposes of Subsection (a), a retail transaction
195	195	that is effected in person by a consumer at a business location of
196	196	the seller shall be treated as occurring in this state if that
197	197	business location is in this state. Any other retail transaction,
198	198	including a transaction over the Internet or via telecommunications
199	199	service, shall be treated as occurring in this state for purposes of
200	200	Subsection (a) if the transaction would be treated as occurring in
201	201	this state under Section 151.061, Tax Code.
202	202	(d) The prepaid wireless 9-1-1 emergency services fee is the
203	203	liability of the consumer and not of the seller or of any provider,
204	204	except that the seller shall be liable to remit all prepaid wireless
205	205	service fees that the seller collects from consumers as provided by
206	206	Section 771.084, including all such charges that the seller is
207	207	deemed to collect where the amount of the charge has not been
208	208	separately stated on an invoice, receipt, or other similar document
209	209	provided to the consumer by the seller.
210	210	(e) The fee imposed under this subchapter is in addition to
211	211	the taxes imposed under Chapter 151, Tax Code.
212	212	(f) The amount of the prepaid wireless 9-1-1 emergency
213	213	services fee that is collected by a seller from a consumer, whether
214	214	or not such amount is separately stated on an invoice, receipt, or
215	215	other similar document provided to the consumer by the seller,
216	216	shall not be included in the base for measuring any tax, fee,
217	217	surcharge, or other charge that is imposed by this state, any
218	218	political subdivision of this state, or any intergovernmental
219	219	agency.
220	220	(g) A seller may deduct and retain one percent of prepaid
221	221	wireless 9-1-1 emergency services fees that it collects to offset
222	222	its costs in administering this fee.
223	223	Sec. 771.083. EXCEPTIONS TO APPLICABILITY OF CHAPTER AND
224	224	LIMITATIONS OF LIABILITY. (a) The comptroller shall establish
225	225	procedures for a seller to document that a sale is not a retail
226	226	transaction under this subchapter. The procedures shall
227	227	substantially conform to procedures for documenting a sale for
228	228	resale under Chapter 151, Tax Code.
229	229	(b) A provider or seller of prepaid wireless
230	230	telecommunications service is not liable for damages to any person
231	231	resulting from or incurred in connection with the provision of, or
232	232	the failure to provide, 9-1-1 emergency service, or for identifying
233	233	or failing to identify the telephone number, address, location, or
234	234	name associated with any person or device that is accessing or
235	235	attempting to access 9-1-1 emergency service, unless the act or
236	236	omission proximately causing the claim, damage, or loss constitutes
237	237	gross negligence, recklessness, or intentional misconduct.
238	238	(c) A provider or seller of prepaid wireless
239	239	telecommunications service is not liable for damages to any person
240	240	resulting from or incurred in connection with the provision of any
241	241	lawful assistance to any investigative or law enforcement officer
242	242	of the United States, this or any other state, or any political
243	243	subdivision of this or any other state in connection with any lawful
244	244	investigation or other law enforcement activity by such
245	245	investigative or law enforcement officer unless the act or omission
246	246	proximately causing the claim, damage, or loss constitutes gross
247	247	negligence, recklessness, or intentional misconduct.
248	248	(d) Information that a provider or seller of prepaid
249	249	wireless telecommunications service is required to furnish to a
250	250	governmental entity in providing or selling 9-1-1 emergency service
251	251	is confidential and exempt from disclosure under Chapter 552,
252	252	Government Code. A provider or seller of prepaid wireless
253	253	telecommunications service is not liable to any person who uses a
254	254	9-1-1 emergency service created under this chapter for the release
255	255	of information furnished by the provider or seller of prepaid
256	256	wireless telecommunications service in providing or selling 9-1-1
257	257	emergency service. Information that is confidential under this
258	258	section may be released only for budgetary calculation purposes and
259	259	only in aggregate form so that no provider-specific or
260	260	seller-specific information may be extrapolated.
261	261	(e) In addition to the exemption from liability provided by
262	262	Subsections (b), (c), and (d), each provider and seller of prepaid
263	263	wireless telecommunications service is entitled to any other
264	264	exemption from liability under this chapter, if any, that is
265	265	provided to wireless service providers.
266	266	Sec. 771.084. APPLICATION OF PROVISIONS OF TAX CODE.
267	267	Except as otherwise provided by this subchapter:
268	268	(1) the fee imposed by this subchapter is
269	269	administered, imposed, collected, and enforced in the same manner
270	270	as a tax under Chapter 151, Tax Code, is administered, imposed,
271	271	collected, and enforced; and
272	272	(2) the provisions applicable to the sales tax imposed
273	273	under Subchapter C, Chapter 151, Tax Code, apply to the fee imposed
274	274	by this subchapter.
275	275	Sec. 771.085. ALLOCATION OF FEE. (a) After deducting an
276	276	amount not greater than 10 percent of collected charges, as
277	277	determined under Subsection (c), the comptroller shall deposit the
278	278	money from the fees imposed by this subchapter, other than
279	279	penalties and interest, to the credit of the 9-1-1 services fee
280	280	account in the general revenue fund. Until deposited to the credit
281	281	of the 9-1-1 services fee account as required by Subsection (b),
282	282	money the comptroller collects under this subchapter remains in a
283	283	trust fund with the state treasury.
284	284	(b) Money collected under this subchapter may be used only
285	285	for services related to 9-1-1 and emergency services, including
286	286	automatic number identification and automatic location information
287	287	services. Not later than the 15th day after the last day of the
288	288	month in which the money is collected, the commission shall
289	289	distribute to each emergency communication district that does not
290	290	participate in the state system a portion of the money that bears
291	291	the same proportion to the total amount collected that the
292	292	population in the area served by the district bears to the
293	293	population of the state. The remaining money collected under this
294	294	subchapter shall be deposited to the 9-1-1 services fee account in
295	295	the general revenue fund.
296	296	(c) The commission shall annually determine by rule the
297	297	percentage of collected charges, not to exceed 10 percent, that
298	298	under Subsection (a) shall be deducted by the comptroller and
299	299	allocated as if collected under Section 771.072.
300	300	Sec. 771.086. EXCLUSIVITY AND APPLICABILITY OF PREPAID
301	301	WIRELESS 9-1-1 EMERGENCY SERVICES FEE. (a) The prepaid wireless
302	302	emergency services fee shall be the only 9-1-1 funding obligation
303	303	imposed with respect to prepaid wireless telecommunications
304	304	service in this state, and no tax, fee, surcharge, or other charge
305	305	shall be imposed by this state, any political subdivision of this
306	306	state, or any intergovernmental agency, for 9-1-1 funding purposes,
307	307	on any provider, seller, or consumer with respect to the sale,
308	308	purchase, use, or provision of prepaid wireless telecommunications
309	309	service.
310	310	(b) The emergency service fee for wireless
311	311	telecommunications connections under Section 771.0711 applies to
312	312	wireless telecommunications service that is not subject to the
313	313	prepaid wireless 9-1-1 emergency services fee under this
314	314	subchapter.
315	315	SECTION 10. This Act takes effect January 1, 2010.