82R22031 SLB-F
By: Smith of Harris, Callegari H.B. No. 2770
Substitute the following for H.B. No. 2770:
By: Harper-Brown C.S.H.B. No. 2770
A BILL TO BE ENTITLED
AN ACT
relating to the powers and duties of navigation districts, port
authorities, and certain municipalities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 551, Government Code, is
amended by adding Section 551.090 to read as follows:
Sec. 551.090. DELIBERATION REGARDING CERTAIN NEGOTIATIONS
AND PROPOSED CHANGES TO FACILITIES OR SERVICES; CLOSED MEETING.
This chapter does not require a navigation district, port
authority, or board of trustees under Chapter 54, Transportation
Code, to conduct an open meeting to deliberate about information
relating to:
(1) a bid, proposal, or contract for goods or services
under negotiation, if disclosure of the information would have a
detrimental effect on the position of the navigation district, port
authority, or board of trustees under Chapter 54, Transportation
Code, in negotiations with a third person; or
(2) proposed changes to facilities or services of the
navigation district, port authority, or board of trustees under
Chapter 54, Transportation Code.
SECTION 2. Sections 271.181(2) and (6), Local Government
Code, are amended to read as follows:
(2) "Civil works project" means:
(A) roads, streets, bridges, utilities, water
supply projects, water plants, wastewater plants, water
distribution and wastewater conveyance facilities, desalination
projects, wharves, docks, navigation channels, dredge material
placement areas, airport runways and taxiways, storm drainage and
flood control projects, or transit projects;
(B) types of projects or facilities related to
those described by Paragraph (A) and associated with civil
engineering construction; and
(C) buildings or structures that are incidental
to projects or facilities that are described by Paragraphs (A) and
(B) and that are primarily civil engineering construction projects.
(6) "Local governmental entity" means a municipality,
a county, a river authority, a defense base development authority
established under Chapter 379B, a board of trustees under Chapter
54, Transportation Code, a municipally owned water utility with a
separate governing board appointed by the governing body of a
municipality, or any other special district or authority authorized
by law to enter into a public works contract for a civil works
project. The term does not include a regional tollway authority
created under Chapter 366, Transportation Code, a regional mobility
authority created under Chapter 370, Transportation Code, or a
water district or authority created under Section 52, Article III,
or Section 59, Article XVI, Texas Constitution, with a population
of less than 50,000.
SECTION 3. Section 271.182, Local Government Code, as
amended by Chapters 135 (S.B. 1047) and 725 (S.B. 229), Acts of the
81st Legislature, Regular Session, 2009, is reenacted and amended
to read as follows:
Sec. 271.182. APPLICABILITY. (a) This subchapter applies
to:
(1) a local governmental entity with a population of
more than 100,000 within its geographic boundaries or service area;
(2) a board of trustees under Chapter 54,
Transportation Code; and
(3) [. (c) This subchapter applies to] a municipally
owned combined electric, water, and wastewater utility situated in
an economically distressed area and located within 30 miles of the
Lower Texas Gulf Coast.
(b) For purposes of Subsection (a), [For this subchapter,]
"combined" means that the utilities are managed and controlled by
one board whose members are appointed by the governing body of the
municipality and that the financing of capital improvements is
secured from the revenue [revenues] of all three utilities.
SECTION 4. Sections 271.186(a) and (b), Local Government
Code, are amended to read as follows:
(a) During the first four years that this subchapter applies
to a local governmental entity under Section 271.182:
(1) a local governmental entity with a population of
500,000 or more may, under this subchapter, enter into contracts
for not more than three projects in any fiscal year;
(2) a local governmental entity with a population of
100,000 or more but less than 500,000 or a board of trustees under
Chapter 54, Transportation Code, may, under this subchapter, enter
into contracts for not more than two projects in any fiscal year;
and
(3) a municipally owned water utility with a separate
governing board appointed by the governing body of a municipality
with a population of 500,000 or more may:
(A) independently enter into a contract for not
more than one civil works project in any fiscal year; and
(B) enter into contracts for additional civil
works projects in any fiscal year, but not more than the number of
civil works projects prescribed by the limit in Subdivision (1) for
the municipality, provided that:
(i) the additional contracts for the civil
works projects entered into by the utility under this paragraph are
allocated to the number of contracts the municipality that appoints
the utility's governing board may enter under Subdivision (1); and
(ii) the governing body of the municipality
must approve the contracts.
(b) After the period described by Subsection (a):
(1) a local governmental entity with a population of
500,000 or more may, under this subchapter, enter into contracts
for not more than six projects in any fiscal year;
(2) a local governmental entity with a population of
100,000 or more but less than 500,000 or a board of trustees under
Chapter 54, Transportation Code, may, under this subchapter, enter
into contracts for not more than four projects in any fiscal year;
and
(3) a municipally owned water utility with a separate
governing board appointed by the governing body of a municipality
with a population of 500,000 or more may:
(A) independently enter into contracts for not
more than two civil works projects in any fiscal year; and
(B) enter into contracts for additional civil
works projects in any fiscal year, but not more than the number of
civil works projects prescribed by the limit in Subdivision (1) for
the municipality, provided that:
(i) the additional contracts for the civil
works projects entered into by the utility under this paragraph are
allocated to the number of contracts the municipality that appoints
the utility's governing board may enter under Subdivision (1); and
(ii) the governing body of the municipality
must approve the contracts.
SECTION 5. Section 60.031, Water Code, is amended to read as
follows:
Sec. 60.031. APPLICATION OF SUBCHAPTER. (a) The
provisions of this subchapter shall apply to:
(1) any district not participating with the United
States in a navigation project; or
(2) a district participating with the United States in
a navigation project if the commission by resolution adopts:
(A) this subchapter; or
(B) sections of this subchapter under which the
district will operate.
(b) For the purposes of Subsection (a)(2), a district that
contracts with the United States for a navigation project under
Subchapter F is considered to be participating with the United
States in a navigation project while the contract is in effect.
SECTION 6. Section 60.038(b), Water Code, is amended to
read as follows:
(b) Before a district may sell land, the commission shall
determine by resolution that the land is no longer [Land which is
sold or leased shall be declared surplus land and shall not be]
needed for use by the district in connection with the development of
a navigation project.
SECTION 7. Section 60.039, Water Code, is amended to read as
follows:
Sec. 60.039. SURFACE LEASE [FOR NOT MORE THAN 30 YEARS].
(a) The commission may lease the surface of land for not more than
30 years by the entry of an order on the minutes of the commission
and the execution of a lease in the manner provided by the original
order. The lease may not be extended beyond the 30-year period by
renewal, extension, or otherwise.
(b) The commission or the executive director of the
district, or a person authorized by the commission or the executive
director, may enter into a lease for a monthly tenancy or a tenancy
from month to month. The lease term may only exceed one year if:
(1) the commission enters an order on the minutes; and
(2) the execution of the lease is in the manner
provided by the original order for the lease.
SECTION 8. Subchapter D, Chapter 60, Water Code, is amended
by adding Section 60.0725 to read as follows:
Sec. 60.0725. NUISANCES; POLLUTION. The commission may
suppress and prevent nuisances, pollution, and improper disposal of
materials on any district property to:
(1) accomplish the purposes stated in Section 60.071;
(2) protect other district property; or
(3) promote the health, safety, and general welfare of
persons using other district property.
SECTION 9. Section 60.101, Water Code, is amended by
amending Subsection (b) and adding Subsections (c) and (d) to read
as follows:
(b) To the extent that the district incurs indebtedness,
[(]bonded or otherwise,[)] for purposes of financing the above
facilities which in turn are sold by installment sale or otherwise,
the [said] indebtedness, principal and interest, may be paid only
from the loan [(]or bond sale[)] proceeds and from revenues
generated from the project financed by the indebtedness, and
security for payment of the principal of and interest on [said]
indebtedness shall be limited to a pledge of the project's revenues
and the project's facilities including enlargements and additions
[thereafter made].
(c) An installment sale under this section is not a loan of
the district's credit or a grant of public money.
(d) A district may contract with a broker to sell a tract of
land in the same manner as the commissioners court of a county under
Section 263.008, Local Government Code.
SECTION 10. Section 60.120(a), Water Code, is amended to
read as follows:
(a) A district acting under [the provisions of] this
subchapter may enter into any contract, lease, or agreement
necessary or convenient to carry out any of the powers granted in
this subchapter, including a contract for purchase, lease for
purchase, or other agreement for the use or acquisition of real
property, or improvements to real property or the use or
acquisition of personal property. The contract, lease, or
agreement may be entered into with any person and any government or
governmental agency including the United States, [and] the State of
Texas, and a public facility corporation organized under Chapter
303, Local Government Code.
SECTION 11. Subchapter E, Chapter 60, Water Code, is
amended by adding Sections 60.1201, 60.1202, and 60.1203 to read as
follows:
Sec. 60.1201. METHOD FOR CONTRACTS TO CONSTRUCT OR ACQUIRE
PROPERTY. The district may use any method provided by Section
60.454 for a contract under this subchapter related to construction
or the acquisition of real property and related personal property,
if the commission determines the method provides the best value for
the district.
Sec. 60.1202. CERTAIN CONTRACT PROCEDURES; ELECTION. (a)
A contract may provide that a district will make payment under the
contract from proceeds from the sale of bonds or notes, from taxes,
or from any other district income, including revenue borrowed or
pledged under Section 60.171, or any combination of these.
(b) A district may make payments under a contract from taxes
other than maintenance taxes, after the provisions of the contract
have been approved by a majority of the electors voting at an
election held for that purpose.
(c) A contract election may be held alone or at the same time
and in conjunction with an election to authorize bonds.
(d) The procedure for calling the election, giving notice,
conducting the election, and canvassing the returns is the same as
the procedure for a bond election. If the contract is approved at
the election, it is an obligation against the taxing power of the
district to the extent provided in the contract.
Sec. 60.1203. ATTORNEY GENERAL APPROVAL FOR CONTRACTS
SECURED BY TAXES. (a) The district shall submit to the attorney
general for approval any contract, lease, or agreement secured by
tax revenue other than revenue from maintenance taxes.
(b) If the attorney general finds that the contract, lease,
or agreement has been entered into in accordance with the law, the
attorney general shall approve the contract, lease, or agreement
and the comptroller shall register it.
(c) When the contract, lease, or agreement has been approved
by the attorney general and registered by the comptroller, it is
incontestable except for forgery or fraud.
SECTION 12. Subchapter E, Chapter 60, Water Code, is
amended by adding Section 60.124 to read as follows:
Sec. 60.124. GIFTS, GRANTS, AND DONATIONS. A district may
accept a gift, grant, donation, or bequest of money or property from
any source for any district purpose.
SECTION 13. Section 60.271(f), Water Code, is amended to
read as follows:
(f) The district shall adopt payment procedures consistent
with Section 105.074(g), Local Government Code. The designated
officer of a district may draw a check on a depository only on a
warrant signed by the presiding officer [chairman] and attested by
the secretary of the district, or by a procedure adopted under this
section.
SECTION 14. Section 60.403, Water Code, is amended by
amending Subsection (c) and adding Subsection (e) to read as
follows:
(c) One original, photocopy, or electronic copy of the
purchase order shall be [A purchase order must be executed in
duplicate with one copy] delivered to the person from whom the
purchase is made and one original, photocopy, or electronic copy
shall be retained [remaining] on file in the district or port
authority in accordance with Subtitle C, Title 6, Local Government
Code.
(e) A district may establish an electronic requisition
system to perform some or all of the functions required by
Subsections (b), (c), and (d). An electronic requisition system
established under this subsection must electronically transmit
data to and receive data from the financial system of the district
in a manner that meets professional, regulatory, and statutory
requirements and standards, including those relating to
purchasing, auditing, and accounting.
SECTION 15. Section 60.408(h), Water Code, is amended to
read as follows:
(h) One original, photocopy, or electronic copy of a [A]
contract, requisition, or purchase order valued at more than the
amount authorized under Section 60.403(a) for routine purchases or
contracts must be [issued in duplicate with one copy] delivered to
the contractor and one original, photocopy, or electronic copy
shall be retained [remaining] on file with the district or port
authority in accordance with Subtitle C, Title 6, Local Government
Code.
SECTION 16. Chapter 60, Water Code, is amended by adding
Subchapter R to read as follows:
SUBCHAPTER R. CHARITABLE CONTRIBUTIONS
Sec. 60.551. DEFINITIONS. In this subchapter:
(1) "Charitable organization" means an organization
that:
(A) is organized for charitable purposes under
Chapter 22, Business Organizations Code, or holds a certificate of
authority issued under that chapter;
(B) is exempt from taxation under Section 501(a)
of the Internal Revenue Code of 1986 as an organization described in
Section 501(c)(3) of that code and to which contributions are
deductible for income tax purposes under Section 170 of that code;
(C) complies with all applicable federal
nondiscrimination law, including Chapter 21, Title 42, United
States Code;
(D) complies with all state statutes and rules
relating to charitable organizations;
(E) is not a private foundation; and
(F) provides funds or programs for eligible
services that directly or indirectly benefit the recipients.
(2) "District employee charitable campaign" means a
campaign conducted in communities or areas in which district
employees solicit contributions to an eligible charitable
organization.
(3) "Eligible charitable organization" means a
charitable organization eligible to participate in the district
employee charitable campaign as provided by Section 60.561.
(4) "Eligible services" means services provided by a
charitable organization that:
(A) benefit residents of this state, including
children, youth, adults, elderly individuals, ill or infirm
individuals, or individuals with a mental or physical disability,
and consist of:
(i) human care, medical or other research
in the field of human health, education, social adjustment, or
rehabilitation;
(ii) relief for victims of natural disaster
or other emergencies; or
(iii) assistance to impoverished
individuals in need of food, shelter, clothing, or other basic
needs; or
(B) benefit this state, and consist of activities
to:
(i) safeguard public health and the
environment; or
(ii) help solve environmental problems.
(5) "Federation or fund" means a fund-raising entity
that:
(A) is a charitable organization;
(B) acts as an agent for at least five charitable
organizations;
(C) is not organized exclusively to solicit
contributions from district employees; and
(D) is supported by voluntary contributions by
the public and is:
(i) incorporated in this state and has an
established physical presence in this state in the form of an office
or service facility that is staffed at least 20 hours a week; or
(ii) incorporated outside this state,
includes at least 10 affiliated charitable organizations, and has
existed at least three years.
Sec. 60.552. AUTHORIZATION OF CAMPAIGN. (a) The
commission or the executive director of a district may establish a
program in the district to allow district employees to participate
in a charitable campaign as provided by this subchapter.
(b) The commission or executive director of a district may
adopt rules relating to the operation of a district employee
charitable campaign as described in this subchapter.
Sec. 60.553. DEDUCTION AUTHORIZED. (a) A district
employee may authorize a deduction each pay period from the
employee's salary or wage payment for a charitable contribution as
provided by this subchapter.
(b) An authorization must direct the district to distribute
the deducted funds to a participating federation or fund.
(c) A deduction under this subchapter must be in the form
prescribed by the district.
Sec. 60.554. VOLUNTARY PARTICIPATION. (a) Participation
by a district employee in a state employee charitable campaign is
voluntary. The district shall inform district employees that
deductions are voluntary.
(b) The district shall adopt rules establishing a process
for hearing employee complaints regarding coercive activity in a
district employee charitable campaign.
Sec. 60.555. DESIGNATION OF AN ELIGIBLE CHARITABLE
ORGANIZATION. (a) A district employee may designate in the
authorization an eligible charitable organization to receive the
deductions.
(b) If a district employee does not designate an eligible
charitable organization, the employee's deductions shall be
distributed to each participating federation or fund and eligible
local charitable organization in the proportion that the deductions
designated for that charitable organization bear to the total of
designated deductions in the district employee charitable
campaign.
Sec. 60.556. CONFIDENTIALITY. (a) Except as necessary to
administer this subchapter or on written authorization of the
employee, the following information is confidential:
(1) whether a district employee has authorized a
deduction under this subchapter;
(2) the amount of the deduction; and
(3) the name of a federation or fund or charitable
organization that a district employee has designated to receive
contributions.
(b) The designation of a charitable organization by a
district employee is not confidential if the employee executes a
written pledge card or other document indicating that the employee
wishes to receive an acknowledgement from the charitable
organization.
(c) The district shall provide notice to district employees
of the confidentiality provisions described by this section.
Sec. 60.557. REVOCATION OR CHANGE OF AUTHORIZATION. (a) A
district employee may revoke or change an authorization by giving
notice to the district.
(b) The notice must be in the form and manner prescribed by
the district.
(c) A revocation or change takes effect on the date
designated by the district, but not later than the 45th day after
the date the district employee gives notice.
Sec. 60.558. DURATION OF DEDUCTION. (a) A deduction under
this subchapter begins on the date designated by the district
employee.
(b) A deduction under this subchapter, unless revoked or
changed under Section 60.557, ends on the date designated by the
district.
Sec. 60.559. FAIR AND EQUITABLE MANAGEMENT OF CAMPAIGN. A
district employee charitable campaign must be managed fairly and
equitably in accordance with this subchapter and the rules,
policies, and procedures established by the district.
Sec. 60.560. CAMPAIGN POLICY AND MANAGEMENT. (a) The
executive director of the district shall oversee the district
employee charitable campaign and the district's employees who
conduct the campaign.
(b) The executive director of the district and employees
designated by the executive director of the district shall:
(1) determine the eligibility of a federation or fund
and its affiliated agencies for participation in the district
employee charitable campaign;
(2) develop a campaign plan, budget, and materials to
be used in the campaign;
(3) coordinate and facilitate the campaign;
(4) ensure that all district employee charitable
campaign activities are conducted fairly and equitably to promote
unified solicitation on behalf of all participants; and
(5) perform other duties required by rules relating to
the district employee charitable campaign.
Sec. 60.561. ELIGIBILITY OF CHARITABLE ORGANIZATIONS,
FEDERATIONS, AND FUNDS FOR PARTICIPATION. (a) To be eligible to
participate in a district employee charitable campaign, a
charitable organization must:
(1) be governed by a voluntary board of citizens that
meets at least twice each year to set policy and manage the affairs
of the organization;
(2) if the organization's annual budget:
(A) does not exceed $100,000, provide a completed
Internal Revenue Service Form 990 and an accountant's review that
offers full and open disclosure of the organization's internal
operations; or
(B) exceeds $100,000, be audited annually in
accordance with generally accepted auditing standards of the
American Institute of Certified Public Accountants; and
(3) not spend more than 25 percent of its annual
revenue for administrative and fund-raising expenses.
(b) A federation or fund that seeks participation in a
district employee charitable campaign must apply on behalf of
itself and its affiliated agencies to the district during the
eligibility determination period specified by the district. The
district shall review each application and may approve a federation
or fund for statewide participation only if the federation or fund
qualifies as a charitable organization. The district may approve
an affiliated charitable organization for participation only if the
organization qualifies as a charitable organization.
(c) The district may use outside expertise and resources
available to it, and rely on a certification of a charitable
organization, or determination of qualification by a statewide
employee charitable campaign under Section 659.146, Government
Code, to assess the eligibility of a charitable organization that
seeks to participate in a district employee charitable campaign.
(d) An appeal from a decision of the district shall be
conducted in the manner prescribed by the commission. The appeals
process must permit a charitable organization that is not approved
for participation to apply for participation in a district employee
charitable campaign.
Sec. 60.562. FUND-RAISING PRACTICES. The fund-raising
practices of a participating charitable organization must:
(1) be truthful and consumer-oriented; and
(2) protect against:
(A) unauthorized use of a list of contributors to
the organization;
(B) payment of commissions, kickbacks, finder
fees, percentages, bonuses, or overrides for fund-raising;
(C) mailing of unordered merchandise or tickets
with a request for money in return; and
(D) general phone solicitation of the public.
Sec. 60.563. LIMITATION ON USE OF CONTRIBUTIONS. (a) A
participating charitable organization may use contributions under
this subchapter only to provide eligible services or to fund a
charitable organization that provides eligible services.
(b) A participating charitable organization may not use
contributions under this subchapter to:
(1) directly or indirectly fund litigation; or
(2) make expenditures that would require the
organization to register under Chapter 305, Government Code, if the
organization were not an entity exempt from registration under that
chapter.
Sec. 60.564. MISAPPLICATION OF CONTRIBUTIONS; AUDIT. (a)
The district may obtain an audit of any participating charitable
organization that the district reasonably believes has misapplied
contributions under this subchapter.
(b) If an audit under this section reveals gross negligence
or intentional misconduct on the part of a participating charitable
organization, the district shall remove the charitable
organization from the campaign. A charitable organization removed
under this subsection is not eligible to participate in a district
employee charitable campaign before the fifth anniversary of the
date the charitable organization was removed.
(c) If an audit under this section reveals intentional
misconduct on the part of a charitable organization, the district
shall forward its findings to the appropriate law enforcement
agency.
(d) The district may bring an action to recover misapplied
contributions.
(e) If an investigation or lawsuit results in a recovery of
misapplied contributions and there is not a judgment distributing
the amounts recovered, the district shall determine the manner of
refunding contributions to the appropriate district employees.
SECTION 17. Section 61.164(c), Water Code, is amended to
read as follows:
(c) No franchise shall be granted until notice [after the
franchise in its final form] is published [in full] at the expense
of the applicant, once a week for three consecutive weeks in a daily
newspaper of general circulation published inside the district.
For the purposes of this subsection, notice consists of:
(1) the text of the franchise in full; or
(2) a descriptive caption stating the purpose of the
franchise and the location at which a complete copy of the franchise
may be obtained.
SECTION 18. Sections 62.107(a) and (c), Water Code, are
amended to read as follows:
(a) Any district created under this chapter may acquire by
gift, purchase, or condemnation and may own land adjacent or
accessible to the navigable water and ports developed by it which
may be necessary or required for any and all purposes incident to or
necessary for the development and operation of the navigable water
or ports within the district, or may be necessary or required for or
in aid of the development of industries and businesses on the land.
(c) The acquisition of land for the purposes included in
this section and the operation and industrial and business
development of ports and waterways are a public purpose and a matter
of public necessity.
SECTION 19. Section 62.122, Water Code, is amended to read
as follows:
Sec. 62.122. DISPOSITION OF SALVAGE OR SURPLUS PERSONAL
PROPERTY. (a) Except as provided by Subsection (b), the [The]
commission may periodically dispose of surplus or salvage personal
property in the same manner as the commissioners court of a county
under Subchapter D, Chapter 263, Local Government Code.
(b) The commission may authorize the destruction or
disposition of salvage or surplus property as worthless if the
property is so worn, damaged, or obsolete that it has no value for
the purpose for which it was originally intended, and the expense to
the district to attempt to sell the property would be more than the
proceeds from the sale.
SECTION 20. Section 63.178(c), Water Code, is amended to
read as follows:
(c) Before the franchise is granted, the commission must
approve the franchise by a majority vote at three separate meetings
held at least one week apart and must publish notice. For the
purposes of this subsection, notice must be published [the
franchise in full,] at the expense of the applicant, once a week for
three consecutive weeks in a newspaper published in the district.
The notice must consist of:
(1) the text of the franchise in full; or
(2) a descriptive caption stating the purpose of the
franchise and the location at which a complete copy of the franchise
may be obtained.
SECTION 21. This Act applies only to a contract entered into
on or after the effective date of this Act. A contract entered into
before the effective date of this Act is covered by the law in
effect when the contract was entered into, and the former law is
continued in effect for that purpose.
SECTION 22. To the extent of any conflict, this Act prevails
over another Act of the 82nd Legislature, Regular Session, 2011,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 23. Section 60.465, Water Code, is repealed.
SECTION 24. 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, 2011.