By: Shapleigh S.B. No. 612
(In the Senate - Filed February 2, 2009; February 23, 2009,
read first time and referred to Committee on Transportation and
Homeland Security; April 8, 2009, reported favorably by the
following vote: Yeas 9, Nays 0; April 8, 2009, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the powers and duties of the Texas Department of
Transportation related to rail facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Section 91.004, Transportation
Code, is amended to read as follows:
(a) The department may:
(1) plan and make policies for the location,
construction, maintenance, and operation of [a] rail facilities
[facility] or systems [system] in this state;
(2) acquire, finance, construct, reconstruct,
relocate, maintain, and subject to Section 91.005, operate publicly
or privately owned [a] passenger or freight rail facilities
[facility], individually or as one or more systems;
(3) for the purpose of acquiring or financing a rail
facility or system, accept a grant or loan from a:
(A) department or agency of the United States;
(B) department, agency, or political subdivision
of this state; or
(C) public or private person;
(4) contract with a public or private person to
finance, construct, maintain, or operate a rail facility under this
chapter; or
(5) perform any act necessary to the full exercise of
the department's powers under this chapter.
SECTION 2. Section 91.005, Transportation Code, is amended
to read as follows:
Sec. 91.005. RELIANCE ON PRIVATE ENTITIES. The department
shall contract with a private entity to operate a railroad under
this chapter [using facilities owned by the department] and may not
use department employees to operate a railroad. The department may
maintain a railroad facility directly or through a private entity.
The department may not own rolling stock.
SECTION 3. Subchapter B, Chapter 91, Transportation Code,
is amended by adding Section 91.038 to read as follows:
Sec. 91.038. PRIVATELY OWNED RAIL FACILITIES. (a) The
department may relocate, construct, reconstruct, maintain, or
operate a privately owned rail facility only if the commission
first determines that the acquisition or other action will be in the
best interests of this state in improving the mobility of the
residents of this state and will:
(1) relieve congestion on public highways;
(2) enhance public safety;
(3) improve air quality; or
(4) expand economic opportunity.
(b) An agreement entered into by the department with a
private owner for the transfer of a rail facility must contain
provisions necessary to ensure compliance with each requirement of
Subsection (a).
SECTION 4. Section 91.071, Transportation Code, is amended
to read as follows:
Sec. 91.071. FUNDING. (a) Except as provided in
Subsection (b), the department may use any available funds to
implement this chapter, including:
(1) funds from the state infrastructure bank; or
(2) surplus revenue of a toll project, as defined by
Section 201.001.
(b) The [Except for money received from the Texas economic
development bank fund under Section 489.102, Government Code, the]
department may not spend money from the general revenue fund to
implement this chapter except:
(1) money appropriated pursuant to a line-item
appropriation;
(2) money received from the Texas Economic Development
Bank under Section 489.102, Government Code;
(3) money awarded from the Texas Enterprise Fund under
Section 481.078, Government Code; or
(4) money appropriated to the Texas rail relocation
and improvement fund.
SECTION 5. Subsections (a) and (c), Section 91.072,
Transportation Code, are amended to read as follows:
(a) The commission and the department have the same powers
and duties relating to the financing of a rail facility or a system
established under Section 91.031 as the commission and the
department have under Subchapter C [E], Chapter 228 [361], relating
to the financing of a toll [turnpike] project, including the
ability to deposit the proceeds of bonds or other obligations and to
pledge, encumber, and expend such proceeds and revenues as provided
in Chapter 228 [361].
(c) For purposes of this section, a reference in Subchapter
C [E], Chapter 228 [361] to:
(1) a toll [turnpike] project means a rail facility or
system; and
(2) revenue includes a fee, rent, or other usage
charge established under this chapter or other money received under
Sections 91.073 and 91.074.
SECTION 6. Subsection (a), Section 91.091, Transportation
Code, is amended to read as follows:
(a) Subject to Section 91.096, the [The] commission may
authorize the department to acquire [in the name of the state] a
right-of-way, a property right, or other interest in real property
determined to be necessary or convenient for the department's
acquisition, construction, maintenance, or operation of rail
facilities. An interest in property acquired for a rail facility
owned or to be owned by the department shall be acquired in the name
of the state.
SECTION 7. Section 91.095, Transportation Code, is amended
to read as follows:
Sec. 91.095. DISPOSAL OF PROPERTY. The department may
sell, convey, or otherwise dispose of any rights or other interests
in real property acquired in the name of the state under this
subchapter that the commission determines are no longer needed for
department purposes.
SECTION 8. Subchapter E, Chapter 91, Transportation Code,
is amended by adding Section 91.096 to read as follows:
Sec. 91.096. ACQUISITION OF PROPERTY FOR PRIVATELY OWNED
RAIL FACILITIES. The department may acquire an interest in real
property for a privately owned rail facility only if the commission
makes the determination required by Section 91.038.
SECTION 9. Subsection (d), Section 201.973, Transportation
Code, is amended to read as follows:
(d) Obligations may be issued for one or more of the
following purposes:
(1) to pay all or part of the costs of relocating,
constructing, reconstructing, acquiring, improving,
rehabilitating, or expanding rail facilities owned or to be owned
by the department, including any necessary design, in the manner
and locations determined by the commission that according to
conclusive findings of the commission have an expected useful life,
without material repair, of not less than 10 years;
(2) to provide participation by the state in the
financing or payment of all or part of the costs of relocating,
constructing, reconstructing, acquiring, improving,
rehabilitating, or expanding publicly or privately owned rail
facilities, including any necessary design, if the commission
determines that the project will be in the best interests of the
state in its major goal of improving the mobility of the residents
of the state and will:
(A) relieve congestion on public highways;
(B) enhance public safety;
(C) improve air quality; or
(D) expand economic opportunity;
(3) to provide loans under Section 201.9731;
(4) to create debt service reserve accounts;
(5) [(4)] to pay interest on obligations for a period
of not longer than two years;
(6) [(5)] to refund or cancel outstanding
obligations; and
(7) [(6)] to pay the commission's costs of issuance.
SECTION 10. Subchapter O, Chapter 201, Transportation Code,
is amended by adding Section 201.9731 to read as follows:
Sec. 201.9731. LOAN PROGRAM. (a) In addition to any other
purpose authorized by this chapter, money in the fund may be used to
provide loans to eligible applicants for the purposes described by
Section 201.973(d) if the applicant's project meets the
requirements of that section.
(b) The department shall administer the loan program and has
all powers necessary and convenient to implement this section and
may:
(1) establish standards and schedules for railroad
infrastructure improvement projects;
(2) establish the specifications and provisions of a
loan that is made to an eligible applicant;
(3) establish in any loan agreement the level and
period of rail service to be provided by the railroad;
(4) negotiate and establish in any loan agreement the
financial participation required of an eligible applicant; and
(5) provide technical assistance to an eligible
applicant.
(c) The department shall allocate loans made under this
section on bases that protect the public interest. A loan may cover
all of a project's cost. Costs eligible for a loan do not include
overhead costs or other indirect costs.
(d) The department shall adopt rules to implement the loan
program.
SECTION 11. Subdivision (6), Section 228.001,
Transportation Code, is amended to read as follows:
(6) "Transportation project" means:
(A) a tolled or nontolled state highway
improvement project;
(B) a toll project eligible for department cost
participation under Section 222.103;
(C) the acquisition, construction,
reconstruction, relocation, maintenance, or operation of a rail
facility or system under Chapter 91;
(D) the acquisition, construction, maintenance,
or operation of a state-owned ferry under Subchapter A, Chapter
342;
(E) a public transportation project under
Chapter 455 or 456;
(F) the establishment, construction, or repair
of an aviation facility under Chapter 21; and
(G) a passenger rail project of another
governmental entity.
SECTION 12. Section 455.005, Transportation Code, is
amended to read as follows:
Sec. 455.005. RAIL FIXED GUIDEWAY [MASS TRANSPORTATION]
SYSTEM SAFETY OVERSIGHT. (a) The department shall:
(1) oversee safety and security practices of rail
fixed guideway [mass transportation] systems in compliance with 49
U.S.C. Section 5330; and
(2) establish a [safety] program standard to be used
to provide rail transit agency safety and security oversight [for
each entity operating a rail fixed guideway mass transportation
system within the state that provides:
[(A) safety requirements that:
[(i) at a minimum comply with the American
Public Transit Association's guidelines published in the "Manual
for the Development of Rail Transit System Safety Program Plans";
and
[(ii) include standards for the personal
security of passengers and employees of rail fixed guideway
systems;
[(B) lines of authority;
[(C) levels of responsibility and
accountability; and
[(D) methods of documentation for the system;
[(3) at least every three years conduct an on-site
safety review of each entity's system safety program plan and
prepare and issue a report containing findings and recommendations
resulting from that review that, at a minimum, include an analysis
of the efficacy of the system safety program plan and a
determination of whether it should be updated;
[(4) review and approve the annual internal safety
audit conducted by an entity that operates a system;
[(5) establish procedures for the investigation of
accidents and unacceptable hazardous conditions;
[(6) investigate accidents and unacceptable hazardous
conditions at entities operating systems unless the National
Transportation Safety Board has investigated or will investigate an
accident;
[(7) require, review, and approve any plan of an
entity operating a system to minimize, control, correct, or
eliminate any investigated accident or hazard; and
[(8) submit reports or other information required by
the United States Department of Transportation].
(b) The department may use a contractor to act on its behalf
in carrying out the duties of the department under this section.
(c) The data collected under this section and the report of
any investigation conducted by the department or a contractor
acting on behalf of the department under this section:
(1) are [is] confidential and not subject to
disclosure, inspection, or copying under Chapter 552, Government
Code; and [but]
(2) may not be admitted in evidence or used for any
purpose in any action or proceeding arising out of any matter
referred to in an investigation except in an action or a proceeding
instituted by the state.
(d) Each rail transit agency [entity operating a system]
shall:
(1) develop and implement a system safety program plan
and a security plan that comply [complies] with the department's
[safety] program plan standards and federal requirements;
(2) conduct an annual review of its system [internal]
safety program plan and security plan [audit] and submit the audit
report to the department;
(3) report accidents, hazards, and hazard resolution
activities [unacceptable hazardous conditions] to the department
in accordance with the department's requirements [writing or by
electronic means acceptable to the department]; and
(4) [minimize, control, correct, or eliminate any
investigated unacceptable hazardous condition as required by the
department; and
[(5)] provide all necessary assistance to allow the
department to conduct appropriate on-site investigations of
accidents and hazards [unacceptable hazardous conditions].
(e) A [Any part of a] system security [safety program] plan
[that concerns security for the system]:
(1) is confidential and not subject to disclosure,
inspection, or copying under Chapter 552, Government Code; and
(2) may not be admitted in evidence or used for any
purpose in any action or proceeding arising out of any matter
referred to in an investigation except in an action or a proceeding
instituted by the state.
(f) The commission shall adopt rules to implement this
section.
(g) Notwithstanding any other provision of law to the
contrary, the commission, the department, or an officer, employee,
or agent of the commission or department is not liable for any act
or omission in the implementation of this section.
(h) In this section:
(1) "Hazard" means any real or potential condition, as
defined in a rail transit agency's hazard management plan, that can
cause:
(A) injury, illness, or death;
(B) damage to or loss of a system, equipment, or
property; or
(C) damage to the environment.
(2) "Rail fixed guideway system" means any light,
heavy, or rapid rail system, monorail, inclined plane, funicular,
trolley, or automated guideway that is subject to 49 U.S.C. Section
5330.
(3) "Rail transit agency" means an entity that
operates a rail fixed guideway system ["Accident" means:
[(A) any event involving the revenue service
operation of a rail fixed guideway system as a result of which an
individual:
[(i) dies; or
[(ii) suffers bodily injury and immediately
receives medical treatment away from the scene of the event; or
[(B) a collision, derailment, or fire that causes
property damage in excess of $100,000.
[(2) "Commission" means the Texas Transportation
Commission.
[(3) "Department" means the Texas Department of
Transportation.
[(4) "Hazardous condition" means a condition that may
endanger human life or property, including an unacceptable
hazardous condition.
[(5) "Investigation" means a process to determine the
probable cause of an accident or an unacceptable hazardous
condition. The term includes a review and approval of the transit
agency's determination of the probable cause of an accident or
unacceptable hazardous condition.
[(6) "Rail fixed guideway mass transportation system"
or "system" means any light, heavy, or rapid rail system, monorail,
inclined plane, funicular, trolley, or automated guideway used for
mass transportation that is included in the United States
government's computation of fixed guideway route miles or receives
funding for urbanized areas under 49 U.S.C. Section 5336 and is not
regulated by the United States government.
[(7) "Safety" means freedom from danger.
[(8) "Security" means freedom from intentional
danger.
[(9) "Unacceptable hazardous condition" means a
hazardous condition determined to be unacceptable using the
American Public Transit Association's guidelines' hazard
resolution matrix].
SECTION 13. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.
* * * * *