83R5191 YDB-D
By: Nichols S.B. No. 211
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas Facilities
Commission; authorizing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 443.007, Government Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) If the board updates or modifies its long-range master
plan for the preservation, maintenance, restoration, and
modification of the Capitol and the Capitol grounds, the board must
conform its plan to the Capitol Complex master plan prepared by the
Texas Facilities Commission under Section 2166.105.
SECTION 2. Section 2152.002, Government Code, is amended to
read as follows:
Sec. 2152.002. SUNSET PROVISION. The Texas Facilities
[Building and Procurement] Commission is subject to Chapter 325
(Texas Sunset Act). Unless continued in existence as provided by
that chapter, the commission is abolished and this subtitle, except
for Chapter 2170 and Section 2157.121, expires September 1, 2021
[2013].
SECTION 3. Subchapter B, Chapter 2152, Government Code, is
amended by adding Section 2152.066 to read as follows:
Sec. 2152.066. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION POLICY. (a) The commission shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008 for the adoption of commission rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009 to assist in the resolution of
internal and external disputes under the commission's
jurisdiction.
(b) The commission's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commission shall:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) provide training as needed to implement the
procedures for negotiated rulemaking or alternative dispute
resolution; and
(3) collect data concerning the effectiveness of those
procedures.
SECTION 4. Section 2165.055, Government Code, is amended to
read as follows:
Sec. 2165.055. REPORT ABOUT IMPROVEMENTS AND REPAIRS. The
commission [biennially] on July 1 of each even-numbered year
[December 1st] shall electronically submit a report to the
governor, lieutenant governor, speaker of the house of
representatives, comptroller, and Legislative Budget Board on:
(1) all improvements and repairs that have been made,
with an itemized account of receipts and expenditures; and
(2) the condition of all property under its control,
with an estimate of needed improvements and repairs.
SECTION 5. Section 2165.2035(e), Government Code, is
amended to read as follows:
(e) On or before December 1 of each even-numbered year, the
commission shall electronically submit a report to the legislature
and the Legislative Budget Board describing the effectiveness of
the program under this section.
SECTION 6. Section 2165.2046, Government Code, is amended
to read as follows:
Sec. 2165.2046. REPORTS ON PARKING PROGRAMS. On or before
December [October] 1 of each even-numbered year, the commission
shall electronically submit a report to the legislature and
Legislative Budget Board describing the effectiveness of parking
programs developed by the commission under this subchapter. The
report must, at a minimum, include:
(1) the yearly revenue generated by the programs;
(2) the yearly administrative and enforcement costs of
each program;
(3) yearly usage statistics for each program; and
(4) initiatives and suggestions by the commission to:
(A) modify administration of the programs; and
(B) increase revenue generated by the programs.
SECTION 7. Chapter 2165, Government Code, is amended by
adding Subchapter H to read as follows:
SUBCHAPTER H. PUBLIC AND PRIVATE FACILITIES AND INFRASTRUCTURE:
QUALIFYING PROJECTS
Sec. 2165.351. DEFINITIONS. In this subchapter:
(1) "Partnership Advisory Commission" means the
Partnership Advisory Commission created by Chapter 2268.
(2) "Qualifying project" has the meaning assigned by
Section 2267.001, as added by Chapter 1334 (S.B. 1048), Acts of the
82nd Legislature, Regular Session, 2011.
Sec. 2165.352. COMMISSION REVIEW GUIDELINES AND POLICIES.
(a) In adopting the qualifying project review guidelines required
by Section 2267.052, as added by Chapter 1334 (S.B. 1048), Acts of
the 82nd Legislature, Regular Session, 2011, the commission must
include review criteria and documentation to guide the initial
review of each substantially complete qualifying project proposal
received by the commission.
(b) The review criteria required under Subsection (a) at a
minimum must include:
(1) the extent to which the qualifying project meets a
public need;
(2) the extent to which the project meets the
objectives and priorities of the commission and aligns with any
applicable commission plans, including the Capitol Complex master
plan developed under Section 2166.105;
(3) the technical and legal feasibility of the
project;
(4) the adequacy of the qualifications, experience,
and financial capacity of a private entity or other person
submitting the proposal;
(5) any potentially unacceptable risks to this state;
and
(6) whether an alternative delivery method is feasible
and more effectively meets this state's goals.
(c) The commission's qualifying project review guidelines
must:
(1) specify the types of professional expertise,
including financial, real estate, legal, and other related
expertise, needed to effectively protect this state's interest when
considering and implementing a qualifying project;
(2) specify the range of professional expertise needed
at each stage of the project, including proposal evaluation,
financial analysis, risk allocation analysis, contract
negotiation, and contract and performance monitoring, to evaluate
the qualifying project proposal; and
(3) require the oversight committee established by the
commission for each qualifying project to report to the commission
the results of the committee's evaluation of the project, including
the schedules, procedures, proposal evaluation criteria, and
documentation required in the guidelines for the evaluation.
(d) The commission shall:
(1) for each qualifying project proposal, post on the
commission's Internet website the oversight committee's review
report and other evaluation documents; and
(2) before posting the report and documents required
under Subdivision (1), redact all information included in the
report and documents that is considered confidential under Section
2267.066(c).
(e) The expertise described by Subsection (c) may be
provided by commission staff or outside experts.
Sec. 2165.353. QUALIFYING PROJECT FEES. (a) The
commission may charge a reasonable fee to cover the costs of
reviewing a qualifying project. The commission shall develop and
adopt a qualifying project proposal fee schedule sufficient to
cover its costs, including at a minimum the costs of processing,
reviewing, and evaluating the proposals.
(b) The commission shall use the professional expertise
information required under Section 2165.352(c) to determine the
amount of the fee charged by the commission to review a qualifying
project proposal. The amount must be reasonable in comparison to
the level of professional expertise required for the project and
may include the cost of staff time required to process the proposal
and other direct costs.
(c) The commission may use the money from the fees collected
under this section to hire or contract with persons who have the
professional expertise necessary to effectively evaluate a
qualifying project proposal.
Sec. 2165.354. INITIAL REVIEW OF QUALIFYING PROJECT
PROPOSAL. (a) The commission staff shall conduct an initial review
of each qualifying project proposal submitted to the commission and
provide to commission members a summary of the review, including an
analysis and recommendations.
(b) Subject to Subsection (c), the commission shall use a
value for money analysis in evaluating each qualifying project
proposal to:
(1) conduct a thorough risk analysis of the proposal
that identifies specific risks shared between this state and the
private partner and subjects the risks to negotiation in the
contract;
(2) determine if the proposal is in the best long-term
financial interest of this state; and
(3) determine if the project will provide a tangible
public benefit to this state.
(c) If commission staff determine that a value for money
analysis is not appropriate for evaluating a specific qualifying
project proposal, the staff shall submit to the commission a
written report stating the reasons for using an alternative
analysis methodology.
(d) The commission shall coordinate with the commission's
office of internal audit for review and receipt of comments on the
reasonableness of the assumptions used in the value for money
analysis or alternative analysis methodology used to evaluate a
qualifying project proposal under this section.
Sec. 2165.355. INITIAL PUBLIC HEARING ON QUALIFYING PROJECT
PROPOSAL. (a) Before submitting a detailed qualifying project
proposal to the Partnership Advisory Commission as required under
Section 2268.058, the commission must hold an initial public
hearing on the proposal.
(b) The commission must post a copy of the detailed
qualifying project proposal on the commission's Internet website
before the required public hearing and, before posting the
proposal, redact all information included in the proposal that is
considered confidential under Section 2267.066(c).
(c) After the hearing, the commission shall:
(1) modify the proposal as the commission determines
appropriate based on the public comments; and
(2) include the public comments in the documents
submitted to the Partnership Advisory Commission and provide any
additional information necessary for the evaluation required under
Chapter 2268.
Sec. 2165.356. SUBMISSION OF QUALIFYING PROJECT CONTRACT TO
CONTRACT ADVISORY TEAM. (a) Not later than the 60th day before the
date the commission is scheduled to vote on approval of a qualifying
project contract, the commission must submit to the Contract
Advisory Team established under Subchapter C, Chapter 2262,
documentation of the modifications to a proposed qualifying project
made during the commission's evaluation and negotiation process for
the project, including a copy of:
(1) the final draft of the contract;
(2) the detailed qualifying project proposal; and
(3) any executed interim or other agreement.
(b) The Contract Advisory Team shall review the
documentation submitted under Subsection (a) and provide written
comments and recommendations to the commission. The review must
focus on, but not be limited to, best practices for contract
management and administration.
(c) Commission staff shall provide to the commission
members:
(1) a copy of the Contract Advisory Team's written
comments and recommendations; and
(2) the staff's response to the comments and
recommendations.
Sec. 2165.357. PROHIBITED EMPLOYMENT OF COMMISSION
EMPLOYEE. (a) A commission employee may not be employed or hired by
another person to perform duties that relate to the employee's
specific duties in developing and implementing a qualifying
project, including review, evaluation, development, and
negotiation of a qualifying project proposal.
(b) The commission shall obtain from each commission
employee sufficient information for the commission to determine
whether:
(1) the employee is employed by another person; and
(2) a potential conflict of interest exists between
the employee's commission duties and the employee's duties with the
other employer.
(c) Each commission employee whose commission duties relate
to a qualifying project, including long-range planning, real estate
management, space management, and leasing services, shall attest
that the employee is aware of and agrees to the commission's ethics
and conflict-of-interest policies.
(d) To the extent the employment is authorized by commission
policy, this section does not prohibit additional employment for a
commission employee whose commission duties are not related to a
qualifying project.
SECTION 8. Section 2166.001, Government Code, is amended by
amending Subdivisions (1) and (1-a) and adding Subdivision (1-b) to
read as follows:
(1) "Capitol Complex" has the meaning prescribed by
Section 411.061(a)(1).
(1-a) "Commission" means the Texas Facilities
Commission.
(1-b) [(1-a)] "Construction" includes acquisition and
reconstruction.
SECTION 9. Section 2166.101(d), Government Code, is amended
to read as follows:
(d) The commission shall summarize its findings on the
status of state-owned buildings and current information on
construction costs in an electronically submitted [a] report [it
shall make available] to the governor, lieutenant governor, speaker
of the house of representatives, comptroller, and Legislative
Budget Board not later than July 1 of each even-numbered year [the
legislature, and the state's budget offices].
SECTION 10. Section 2166.102(b), Government Code, is
amended to read as follows:
(b) The commission shall maintain a six-year capital
planning cycle and shall electronically submit [file] a master
facilities plan with the governor, lieutenant governor, speaker of
the house of representatives, [Governor's Office of Budget and
Planning, the] Legislative Budget Board, and [the] comptroller
before July 1 of each even-numbered year.
SECTION 11. Section 2166.103(b), Government Code, is
amended to read as follows:
(b) Not later than July 1 of each even-numbered year [Before
each legislative session], the commission shall electronically
submit [send] to the governor, the lieutenant governor, the speaker
of the house of representatives, the comptroller, and the
Legislative Budget Board a report identifying counties in which
more than 50,000 square feet of usable office space is needed and
the commission's recommendations for meeting that need. The
commission may recommend leasing or purchasing and renovating one
or more existing buildings or constructing one or more buildings.
SECTION 12. Subchapter C, Chapter 2166, Government Code, is
amended by adding Sections 2166.105, 2166.106, 2166.107, and
2166.108 to read as follows:
Sec. 2166.105. CAPITOL COMPLEX MASTER PLAN. (a) The
commission shall prepare a Capitol Complex master plan that at a
minimum includes:
(1) an overview and summary of the previous plans for
the Capitol Complex;
(2) a stated strategic vision and long-term goals for
the Capitol Complex;
(3) an analysis of state property, including
buildings, in the Capitol Complex and of the extent to which this
state satisfies its space needs through use of the property;
(4) in consultation with the General Land Office, an
analysis of the current and forecasted real estate market
conditions in the Austin area;
(5) detailed, site-specific proposals for developing
state property in the Capitol Complex, including proposals on the
use of property and space for public or private sector purposes;
(6) an analysis of and recommendations for building
design guidelines to ensure appropriate quality in new or remodeled
buildings in the Capitol Complex;
(7) an analysis of and recommendations for Capitol
Complex infrastructure needs, including transportation, utilities,
and parking;
(8) for projects identified in the plan, an analysis
of and recommendations for financing options, including private
sector participation;
(9) time frames for implementing the plan components
and any projects identified in the plan;
(10) consideration of alternative options for meeting
state space needs outside the Capitol Complex; and
(11) other information relevant to the Capitol Complex
as the commission determines appropriate.
(b) The commission shall ensure that the General Land
Office, the State Preservation Board, the Texas Historical
Commission, and other relevant interested parties are included in
each stage of the development of the Capitol Complex master plan.
(c) The commission shall submit to the governor, lieutenant
governor, speaker of the house of representatives, comptroller, and
Legislative Budget Board:
(1) not later than July 1, 2014, the initial Capitol
Complex master plan; and
(2) not later than July 1 of each even-numbered year
thereafter, updates to the plan.
(d) The commission shall ensure that the Capitol Complex
master plan and the master facilities plan developed under Section
2166.102 do not conflict and together comprehensively address the
space needs of state agencies.
Sec. 2166.106. REVIEW OF PROPOSED CAPITOL COMPLEX MASTER
PLAN BY STATE PRESERVATION BOARD AND GENERAL LAND OFFICE. (a) Not
later than the 90th day before the date the commission holds a
public meeting to discuss a proposed Capitol Complex master plan,
the commission must submit the proposed plan to the State
Preservation Board and the General Land Office for review and
comment.
(b) Not later than the 60th day before the date the
commission holds a public meeting to discuss a proposed update to
the Capitol Complex master plan, the commission must submit the
proposed update to the State Preservation Board and the General
Land Office for review and comment.
(c) Not later than the 90th day after the date the State
Preservation Board receives from the commission a proposed Capitol
Complex master plan and not later than the 60th day after the date
the board receives from the commission a proposed update to the
plan, the board may:
(1) by a public vote disapprove the plan or update if
the board determines that the goals or recommendations in the plan
or update are not in the best interest of the state or of the Capitol
Complex; and
(2) submit to the commission written comments and
recommended modifications to the plan or update.
(d) The proposed Capitol Complex master plan or the proposed
update to the plan is considered to be approved by the State
Preservation Board if the board does not hold the public vote
authorized by Subsection (c) on or before the date required under
that subsection.
(e) The review of the Capitol Complex master plan under this
section is in addition to the review required for a proposed project
under Section 443.0071.
Sec. 2166.107. COMPREHENSIVE PLANNING AND DEVELOPMENT
PROCESS. (a) The commission by rule shall adopt a comprehensive
process for planning and developing state property in the
commission's inventory, including property in the Capitol Complex,
and for assisting state agencies in space development planning for
state property under Sections 2165.105 and 2165.1061.
(b) The process under this section at a minimum must
include:
(1) a clear approach and specific time frames for
obtaining input throughout the planning and development process
from the public, interested parties, and state agencies, including
the General Land Office and, for Capitol Complex property, the
State Preservation Board and the Texas Historical Commission;
(2) specific schedules for providing to the commission
regular updates on planning and development efforts;
(3) a public involvement policy to ensure that before
the commission makes a decision on the use or development of state
property the public and interested parties have the opportunity to
review and comment on the commission's plans; and
(4) confidentiality policies consistent with Chapter
552.
Sec. 2166.108. COMPREHENSIVE CAPITAL IMPROVEMENT AND
DEFERRED MAINTENANCE PLAN. (a) The commission shall develop a
comprehensive capital improvement and deferred maintenance plan
that clearly defines the capital improvement needs and critical and
noncritical maintenance needs of state buildings.
(b) The comprehensive capital improvement and deferred
maintenance plan must:
(1) with respect to deferred maintenance projects:
(A) list, with regular updates, deferred
maintenance projects that contain critical high-priority projects
and lower-priority, non-health and safety projects;
(B) state the commission's plan for addressing
the projects;
(C) account for the completion of high-priority
projects;
(D) estimate when the lower-priority projects
may become higher-priority projects; and
(E) be modified as necessary to include
additional maintenance projects;
(2) contain a list of all predictable capital
improvement projects, including a time frame and a cost estimate
for each project; and
(3) contain a plan, updated biennially, for responding
to emergency repairs and replacements that, in consultation with
the Legislative Budget Board, identifies potential sources of
funds, which may include bonds and bond interest, that may be used
to pay the costs of emergency repair and replacement projects.
(c) The comprehensive capital improvement and deferred
maintenance plan must include for each segment of the plan
described by Subsection (b) a prioritized list by state agency
facility of each project that includes an estimate of the project's
cost and the aggregate costs for all facility projects.
(d) The commission shall include the comprehensive capital
improvement and deferred maintenance plan and regular updates to
the plan in its long-range plan under Section 2166.102. The
information included in the long-range plan must include the
aggregate project costs for each state agency but may exclude the
cost of each specific facility project.
SECTION 13. Section 31.155(d), Natural Resources Code, is
amended to read as follows:
(d) The duty under this subchapter of the division to review
and verify real property records and to make recommendations
regarding real property and of the commissioner to prepare a report
involving real property does not apply to:
(1) the real property of an institution of higher
education;
(2) the real property that is part of a fund created or
specifically authorized by the constitution of this state and that
is administered by or with the assistance of the land office;
(3) the real property of the Employees Retirement
System of Texas; [and]
(4) the real property of the Teacher Retirement System
of Texas; and
(5) the real property included in the Capitol Complex
as defined by Section 411.061(a)(1), Government Code.
SECTION 14. The Texas Facilities Commission shall:
(1) not later than January 1, 2014:
(A) develop the qualifying project review
guidelines required by Section 2165.352, Government Code, as added
by this Act;
(B) develop the qualifying project proposal fee
schedule required by Section 2165.353, Government Code, as added by
this Act; and
(C) adopt the comprehensive planning and
development process required by Section 2166.107, Government Code,
as added by this Act; and
(2) not later than July 1, 2014:
(A) prepare the Capitol Complex master plan
required by Section 2166.105, Government Code, as added by this
Act, and submit the plan as required by that section; and
(B) prepare the comprehensive capital
improvement and deferred maintenance plan required by Section
2166.108, Government Code, as added by this Act.
SECTION 15. 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, 2013.