By: Nichols, et al. S.B. No. 211
(Dutton)
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 30.022, Education Code, is amended by
amending Subsection (h) and adding Subsection (h-1) to read as
follows:
(h) Except as provided by Subsection (h-1), the [The] board
has [exclusive] jurisdiction over the physical assets of the school
and shall administer and spend appropriations made for the benefit
of the school.
(h-1) The Texas Facilities Commission shall provide
facilities maintenance services for the physical facilities of the
school, including facilities construction, cabling, facility
reconfiguration, and any other services as provided by a memorandum
of understanding between the board and the Texas Facilities
Commission.
SECTION 2. Section 30.052, Education Code, is amended by
amending Subsection (h) and adding Subsection (h-1) to read as
follows:
(h) Except as provided by Subsection (h-1), the [The] board
has [exclusive] jurisdiction over the physical assets of the school
and shall administer and spend appropriations to carry out the
purposes of the school as provided by Section 30.051.
(h-1) The Texas Facilities Commission shall provide
facilities maintenance services for the physical facilities of the
school, including facilities construction, cabling, facility
reconfiguration, and any other services as provided by a memorandum
of understanding between the board and the Texas Facilities
Commission.
SECTION 3. 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 4. 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 5. 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 6. Subsection (b), Section 2165.007, Government
Code, is amended to read as follows:
(b) Notwithstanding any other law, the commission shall
provide facilities management services in relation to all state
agency facilities in Travis County or a county adjacent to Travis
County. The commission's duty does not apply to:
(1) a facility owned or operated by an institution of
higher education;
(2) military facilities;
(3) facilities owned or operated by the Texas
Department of Criminal Justice;
(4) facilities owned or operated by the Texas Juvenile
Justice Department [Youth Commission];
(5) facilities owned or operated by the Texas
Department of Transportation;
(6) the Capitol, including the Capitol Extension, the
General Land Office building, the Bob Bullock Texas State History
Museum, any museum located on the Capitol grounds, the Governor's
Mansion, and any property maintained by the Texas Historical
Commission under Sections 442.0072 and 442.0073;
(7) a facility determined by the commission to be
completely residential;
(8) a regional or field office of a state agency;
(9) a facility located within or on state park
property;
(10) the property known as the Finance Commission
Building described by deed recorded in Volume 5080, Page 1099, of
the Deed Records of Travis County, Texas; [or]
(11) the property known as the Credit Union Department
Building described by deed recorded in Volume 6126, Page 27, of the
Deed Records of Travis County, Texas;
(12) facilities owned or operated by the Texas School
for the Blind and Visually Impaired; or
(13) facilities owned or operated by the Texas School
for the Deaf.
SECTION 7. 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 8. Subsection (e), Section 2165.2035, 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 9. 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 10. Subchapter F, Chapter 2165, Government Code, is
amended by adding Section 2165.259 to read as follows:
Sec. 2165.259. CAPITOL COMPLEX. (a) In this section,
"Capitol Complex" has the meaning assigned by Section 443.0071.
(b) Notwithstanding Subchapter D, the commission may not
lease, sell, or otherwise dispose of real property or an interest in
real property located in the Capitol Complex.
(c) This section does not affect the commission's authority
under Subchapter E to lease space in state office buildings and
parking garages.
SECTION 11. 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 12. 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 13. Subsection (d), Section 2166.101, 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 14. Subsection (b), Section 2166.102, 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 15. Subsection (b), Section 2166.103, 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 16. Subchapter C, Chapter 2166, Government Code, is
amended by adding Sections 2166.105, 2166.106, 2166.1065,
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) detailed, site-specific proposals for state
property in the Capitol Complex, including proposals on the use of
property and space for public sector purposes;
(5) an analysis of and recommendations for building
design guidelines to ensure appropriate quality in new or remodeled
buildings in the Capitol Complex;
(6) an analysis of and recommendations for Capitol
Complex infrastructure needs, including transportation, utilities,
and parking;
(7) for projects identified in the plan, an analysis
of and recommendations for financing options;
(8) time frames for implementing the plan components
and any projects identified in the plan;
(9) consideration of alternative options for meeting
state space needs outside the Capitol Complex; and
(10) 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. 2166.1065. REVIEW OF CAPITOL COMPLEX MASTER PLAN BY
PARTNERSHIP ADVISORY COMMISSION. (a) After a proposed Capitol
Complex master plan or proposed update to the plan is submitted and
considered approved under Section 2166.106 and before the
commission adopts the plan or update, the commission must submit
the plan or update to the Partnership Advisory Commission
established under Chapter 2268 for review and comment.
(b) Not later than the 60th day after the date the
Partnership Advisory Commission receives the plan or update, the
advisory commission shall in a public hearing by majority vote of
the members present:
(1) vote to approve the plan or update; or
(2) submit to the commission written comments and
recommended modifications to the plan or update.
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 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;
(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 17. Section 2267.001, Government Code, as added by
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, is amended by adding Subdivision (1-a) to read as
follows:
(1-a) "Commission" means the Partnership Advisory
Commission established under Chapter 2268.
SECTION 18. Section 2267.003, Government Code, as added by
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, is amended to read as follows:
Sec. 2267.003. APPLICABILITY. This chapter does not apply
to:
(1) the financing, design, construction, maintenance,
or operation of a highway in the state highway system;
(2) a transportation authority created under Chapter
451, 452, 453, or 460, Transportation Code; [or]
(3) any telecommunications, cable television, video
service, or broadband infrastructure other than technology
installed as part of a qualifying project that is essential to the
project; or
(4) a qualifying project located in the Capitol
Complex, as defined by Section 443.0071.
SECTION 19. Subchapter A, Chapter 2267, Government Code, as
added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature,
Regular Session, 2011, is amended by adding Sections 2267.005,
2267.006, 2267.007, and 2267.008 to read as follows:
Sec. 2267.005. APPLICABILITY OF MUNICIPAL ZONING
REGULATIONS. (a) Except as provided by Subsection (b) and Section
2267.006, a qualifying project that is to be performed or located in
a municipality must comply with the zoning and land use regulations
of the municipality.
(b) This section does not apply to a qualifying project
that:
(1) uses a building, other structure, or land under
the control, administration, or jurisdiction of a state agency for
the same public purposes for which the state agency is authorized
under the governing law that established the agency to use the
building, structure, or land; or
(2) is located within the Capitol Complex, as defined
by Section 411.061(a)(1).
Sec. 2267.006. SPECIAL BOARD OF REVIEW. (a) If a
qualifying project does not comply with the zoning and land use
regulations of a municipality as required by Section 2267.005 and
the municipality denies a rezoning request for the qualifying
project, the matter may be appealed to a special board of review
consisting of the following members:
(1) the land commissioner;
(2) the administrative head of the governing body of
the responsible governmental entity;
(3) the mayor of the municipality;
(4) the county judge of the county in which the
municipality is located;
(5) one state senator selected by the lieutenant
governor;
(6) one member of the house of representatives
selected by the speaker of the house; and
(7) the commission member appointed by the governor.
(b) The land commissioner shall serve as presiding officer
of the special board of review.
(c) The special board of review shall conduct one or more
public hearings to consider the proposed qualifying project. The
hearings must be conducted in accordance with rules adopted by the
General Land Office for conduct of special review. The hearings are
not considered a contested case proceeding under Chapter 2001.
(d) If after the hearings, the special board of review
determines that the zoning and land use regulations are detrimental
to the best interest of this state, the special board of review
shall issue an order establishing a development plan to govern the
use of the real property related to the qualifying project.
Development of the real property must be in accordance with the plan
and comply with all applicable municipal regulations, orders, or
ordinances except as specifically identified by the order of the
special board of review. If substantial progress is not made in
implementing the qualifying project before the fifth anniversary of
the date the development plan is adopted by the special board of
review, the municipal zoning and land use regulations become
applicable to development of the property, unless the special board
of review adopts a new development plan.
(e) A development plan adopted by the special board of
review and any plan accepted by a responsible governmental entity
is final and binding on the state, the responsible governmental
entity, lessees, successors in interest and assigns, and the
affected municipality unless revised by the special board of
review.
(f) A responsible governmental entity, builder, developer,
or any other person may not modify the development plan without
specific approval by the special board of review.
Sec. 2267.007. CONFLICT OF INTEREST. An employee of a
responsible governmental entity or a person related to the employee
within the second degree by consanguinity or affinity, as
determined under Chapter 573, may not accept money, a financial
benefit, or other consideration from a contracting person that has
entered into a comprehensive agreement with the responsible
governmental entity.
Sec. 2267.008. PROHIBITED EMPLOYMENT WITH FORMER OR RETIRED
GOVERNMENTAL ENTITY EMPLOYEES. (a) A contracting person may not
employ or enter into a professional services contract or a
consulting services contract under Chapter 2254 with a former or
retired employee of the responsible governmental entity with which
the person has entered into a comprehensive agreement before the
first anniversary of the date on which the former or retired
employee terminates employment with the entity.
(b) This section does not prohibit the contracting person
from entering into a professional services contract with a
corporation, firm, or other business organization that employs a
former or retired employee of the responsible governmental entity
before the first anniversary of the date the former or retired
employee terminates employment with the entity if the former or
retired employee does not perform services for the corporation,
firm, or other business organization under the comprehensive
agreement with the responsible governmental entity that the former
or retired employee worked on before terminating employment with
the entity.
SECTION 20. (a) Section 2267.051, Government Code, as
added by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature,
Regular Session, 2011, is amended by amending Subsection (a) and
adding Subsection (a-1) to read as follows:
(a) Except as provided by Subsection (a-1), a [A] person may
not develop or operate a qualifying project unless the person
obtains the approval of and contracts with the responsible
governmental entity under this chapter. The person may initiate
the approval process by submitting a proposal requesting approval
under Section 2267.053(a), or the responsible governmental entity
may request proposals or invite bids under Section 2267.053(b).
(a-1) A person may not develop or operate a qualifying
project on property located within the Capitol Complex, as defined
by Section 411.061(a)(1), unless the person obtains the approval of
and contracts with the responsible governmental entity under this
chapter. The person may not initiate the approval process by
submitting a proposal requesting approval under Section
2267.053(a). The responsible governmental entity may request
proposals or invite bids under Section 2267.053(b).
(b) If S.B. No. 894, Acts of the 83rd Legislature, Regular
Session, 2013, or similar legislation relating to real property
within the Capitol Complex is enacted and becomes law, this section
has no effect.
SECTION 21. Section 2267.052, Government Code, as added by
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, is amended by amending Subsections (b) and (c) and
adding Subsection (d) to read as follows:
(b) The guidelines for a responsible governmental entity
described by Section 2267.001(5)(A) must:
(1) require the responsible governmental entity to:
(A) make a representative of the entity available
to meet with persons who are considering submitting a proposal; and
(B) provide notice of the representative's
availability;
(2) provide reasonable criteria for choosing among
competing proposals;
(3) contain suggested timelines for selecting
proposals and negotiating an interim or comprehensive agreement;
(4) allow the responsible governmental entity to
accelerate the selection, review, and documentation timelines for
proposals involving a qualifying project considered a priority by
the entity;
(5) include financial review and analysis procedures
that at a minimum consist of:
(A) a cost-benefit analysis;
(B) an assessment of opportunity cost;
(C) consideration of the degree to which
functionality and services similar to the functionality and
services to be provided by the proposed project are already
available in the private market; and
(D) consideration of the results of all studies
and analyses related to the proposed qualifying project;
(6) allow the responsible governmental entity to
consider the nonfinancial benefits of a proposed qualifying
project;
(7) include criteria for:
(A) the qualifying project, including the scope,
costs, and duration of the project and the involvement or impact of
the project on multiple public entities;
(B) the creation of and the responsibilities of
an oversight committee, with members representing the responsible
governmental entity, that acts as an advisory committee to review
the terms of any proposed interim or comprehensive agreement; and
(C) compliance with the requirements of Chapter
2268;
(8) require the responsible governmental entity to
analyze the adequacy of the information to be released by the entity
when seeking competing proposals and require that the entity
provide more detailed information, if the entity determines
necessary, to encourage competition, subject to Section
2267.053(g);
(9) establish criteria, key decision points, and
approvals required to ensure that the responsible governmental
entity considers the extent of competition before selecting
proposals and negotiating an interim or comprehensive agreement;
and
(10) require the posting and publishing of public
notice of a proposal requesting approval of a qualifying project,
including:
(A) specific information and documentation
regarding the nature, timing, and scope of the qualifying project,
as required under Section 2267.053(a);
(B) a reasonable period, as determined by the
responsible governmental entity, of not less than 45 days or more
than 180 days, or a longer period specified by the governing body of
the responsible governmental entity to accommodate a large-scale
project, [as determined by the responsible governmental entity,] to
encourage competition and partnerships with private entities and
other persons in accordance with the goals of this chapter, during
which the responsible governmental entity must accept submission of
competing proposals for the qualifying project; and
(C) a requirement for advertising the notice on
the governmental entity's Internet website and on TexasOnline or
the state's official Internet website.
(c) The guidelines of a responsible governmental entity
described by Section 2267.001(5)(B) must include:
(1) [may include] the provisions required under
Subsection (b); and
(2) [must include] a requirement that the governmental
entity engage the services of qualified professionals, including an
architect, professional engineer, or certified public accountant,
not otherwise employed by the governmental entity, to provide
independent analyses regarding the specifics, advantages,
disadvantages, and long-term and short-term costs of any proposal
requesting approval of a qualifying project unless the governing
body of the governmental entity determines that the analysis of the
proposal is to be performed by employees of the governmental
entity.
(d) A responsible governmental entity described by Section
2267.001(5)(A) shall submit a copy of the guidelines adopted by the
entity under this section to the commission for approval by the
commission. The commission shall prescribe the procedure for
submitting the guidelines for review under this section. The
governmental entity may not request or consider a proposal for a
qualifying project until the guidelines are approved by the
commission.
SECTION 22. Section 2267.053, Government Code, as added by
Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, is amended by amending Subsections (a) and (b) and
adding Subsections (a-1), (b-1), and (b-2) to read as follows:
(a) A private entity or other person may submit a proposal
requesting approval of a qualifying project by the responsible
governmental entity. The proposal must be accompanied by the
following, unless waived by the responsible governmental entity:
(1) a topographic map, with a 1:2,000 or other
appropriate scale, indicating the location of the qualifying
project;
(2) a description of the qualifying project,
including:
(A) the conceptual design of any facility or a
conceptual plan for the provision of services or technology
infrastructure; and
(B) a schedule for the initiation of and
completion of the qualifying project that includes the proposed
major responsibilities and timeline for activities to be performed
by the governmental entity and the person;
(3) a statement of the method the person proposes for
securing necessary property interests required for the qualifying
project;
(4) information relating to any current plans for the
development of facilities or technology infrastructure to be used
by a governmental entity that are similar to the qualifying project
being proposed by the person for each affected jurisdiction;
(5) a list of all permits and approvals required for
the development and completion of the qualifying project from
local, state, or federal agencies and a projected schedule for
obtaining the permits and approvals;
(6) a list of any facilities that will be affected by
the qualifying project and a statement of the person's plans to
accommodate the affected facilities;
(7) a statement on the person's general plans for
financing the qualifying project, including the sources of the
person's funds and identification of any dedicated revenue source
or proposed debt or equity investment for the person;
(8) the name and address of each individual who may be
contacted for further information concerning the request;
(9) user fees, lease payments, and other service
payments over the term of any applicable interim or comprehensive
agreement and the methodology and circumstances for changes to the
user fees, lease payments, and other service payments over time;
(10) a statement of the specific public purpose served
by the qualifying project;
(11) a statement describing the qualifying project's
compliance with the responsible governmental entity's best value
determination under Subsection (b-1); and
(12) [(10)] any additional material and information
the responsible governmental entity reasonably requests.
(a-1) A responsible governmental entity that approves a
proposal for a qualifying project under Subsection (a) shall select
the contracting person for the project by soliciting additional
proposals through a request for qualifications, request for
proposals, or invitation to bid.
(b) A responsible governmental entity may request proposals
or invite bids from persons for the development or operation of a
qualifying project.
(b-1) A responsible governmental entity shall make a best
value determination in evaluating the proposals received and
consider the total project cost as one factor in evaluating the
proposals. The responsible governmental entity [received, but] is
not required to select the proposal that offers the lowest total
project cost and[. The responsible governmental entity] may
consider the following factors:
(1) the proposed cost of the qualifying project;
(2) the general reputation, industry experience, and
financial capacity of the person submitting a proposal;
(3) the proposed design and overall quality of the
qualifying project;
(4) the eligibility of the project for accelerated
selection, review, and documentation timelines under the
responsible governmental entity's guidelines;
(5) comments from local citizens and affected
jurisdictions;
(6) benefits to the public;
(7) the person's good faith effort to comply with the
goals of a historically underutilized business plan;
(8) the person's plans to employ local contractors and
residents;
(9) for a qualifying project that involves a
continuing role beyond design and construction, the person's
proposed rate of return and opportunities for revenue sharing;
(10) the relationship and conformity of the qualifying
project to a state or local community plan impacted by the
qualifying project or to the uses of property surrounding the
qualifying project;
(11) the historic significance of the property on
which the qualifying project is proposed to be located;
(12) the environmental impact of the qualifying
project; and
(13) [(10)] other criteria that the responsible
governmental entity considers appropriate.
(b-2) A responsible governmental entity may approve a
qualifying project that the governmental entity determines serves a
public purpose. The responsible governmental entity must include
in the comprehensive agreement for the qualifying project a written
declaration of the specific public purpose served by the project.
SECTION 23. Subsection (a), Section 2267.058, Government
Code, as added by Chapter 1334 (S.B. 1048), Acts of the 82nd
Legislature, Regular Session, 2011, is amended to read as follows:
(a) Before developing or operating the qualifying project,
the contracting person must enter into a comprehensive agreement
with a responsible governmental entity. The comprehensive
agreement shall provide for:
(1) delivery of letters of credit or other security in
connection with the development or operation of the qualifying
project, in the forms and amounts satisfactory to the responsible
governmental entity, and delivery of performance and payment bonds
in compliance with Chapter 2253 for all construction activities;
(2) review of plans and specifications for the
qualifying project by the responsible governmental entity and
approval by the responsible governmental entity indicating that
[if] the plans and specifications conform to standards acceptable
to the responsible governmental entity, except that the contracting
person may not be required to provide final design documents for
[complete the design of] a qualifying project before the execution
of a comprehensive agreement;
(3) inspection of the qualifying project by the
responsible governmental entity to ensure that the contracting
person's activities are acceptable to the responsible governmental
entity in accordance with the comprehensive agreement;
(4) maintenance of a public liability insurance
policy, copies of which must be filed with the responsible
governmental entity accompanied by proofs of coverage, or
self-insurance, each in the form and amount satisfactory to the
responsible governmental entity and reasonably sufficient to
ensure coverage of tort liability to the public and project
employees and to enable the continued operation of the qualifying
project;
(5) monitoring of the practices of the contracting
person by the responsible governmental entity to ensure that the
qualifying project is properly maintained;
(6) reimbursement to be paid to the responsible
governmental entity for services provided by the responsible
governmental entity;
(7) filing of appropriate financial statements on a
periodic basis; and
(8) policies and procedures governing the rights and
responsibilities of the responsible governmental entity and the
contracting person if the comprehensive agreement is terminated or
there is a material default by the contracting person, including
conditions governing:
(A) assumption of the duties and
responsibilities of the contracting person by the responsible
governmental entity; and
(B) the transfer or purchase of property or other
interests of the contracting person to the responsible governmental
entity.
SECTION 24. The heading to Section 2267.066, Government
Code, is amended to read as follows:
Sec. 2267.066. POSTING OF PROPOSALS; PUBLIC COMMENT; PUBLIC
ACCESS TO PROCUREMENT RECORDS; FINAL VOTE.
SECTION 25. Section 2267.066, Government Code, is amended
by amending Subsections (c) and (d) and adding Subsection (e-1) to
read as follows:
(c) Chapter 552 applies to qualifying project proposals
[Trade secrets, financial records, or other records of the
contracting person excluded from disclosure under Section 552.101
may not be posted or made available for public inspection except as
otherwise agreed to by the responsible governmental entity and the
contracting person].
(d) The responsible governmental entity shall hold a public
hearing on the proposal during the proposal review process not
later than the 30th day before the date the entity enters into an
interim or comprehensive agreement. The public hearing shall be
held in the area in which the proposed qualifying project is to be
performed.
(e-1) After making the proposed comprehensive agreement
available as required by Subsection (e), the responsible
governmental entity shall hold a public hearing on the final
version of the proposed comprehensive agreement and vote on the
proposed comprehensive agreement after the hearing. The hearing
must be held not later than the 10th day before the date the entity
enters into a comprehensive agreement with a contracting person.
SECTION 26. (a) Subchapter B, Chapter 2267, Government
Code, as added by Chapter 1334 (S.B. 1048), Acts of the 82nd
Legislature, Regular Session, 2011, is amended by adding Section
2267.067 to read as follows:
Sec. 2267.067. QUALIFYING PROJECT IN CAPITOL COMPLEX.
(a) A qualifying project for property located in the Capitol
Complex, as defined by Section 411.061(a)(1), must be consistent
with Capitol Complex design guidelines or standards adopted as part
of the Capitol Complex master plan developed under Section
2166.105.
(b) A responsible governmental entity shall include design
guidelines and standards defined in Subsection (a) in the request
for proposals or invitation for bids for the development or
operation of a qualifying project and inform the persons who submit
proposals of the requirement to comply with the design guidelines
and standards. The final proposal or invitation must be submitted
to the State Preservation Board for verification that the proposal
complies with the design guidelines and standards.
(c) A responsible governmental entity shall submit a final
qualifying project proposal for property in the area described by
Subsection (a) to the State Preservation Board. The board by
majority vote may disapprove the proposal not later than the 60th
day after the date the proposal is received by the board.
(d) A responsible governmental entity may not approve a
qualifying project proposal for property in the area described by
Subsection (a) before September 1, 2015. This subsection expires
September 1, 2015.
(b) If S.B. No. 894, Acts of the 83rd Legislature, Regular
Session, 2013, or similar legislation relating to real property
within the Capitol Complex is enacted and becomes law, this section
has no effect.
SECTION 27. Subsection (a), Section 2268.052, Government
Code, is amended to read as follows:
(a) The commission consists of the following five [11]
members:
(1) the chair of the House Appropriations Committee
[or the chair's designee];
(2) one representative [three representatives]
appointed by the speaker of the house of representatives;
(3) the chair of the Senate Finance Committee [or the
chair's designee];
(4) one senator [three senators] appointed by the
lieutenant governor; and
(5) one public member [three representatives of the
executive branch,] appointed by the governor.
SECTION 28. Section 2268.055, Government Code, is amended
to read as follows:
Sec. 2268.055. MEETINGS. (a) The commission shall hold
meetings quarterly or on the call of the presiding officer.
(b) Commission meetings are subject to Chapter 551.
SECTION 29. Subsection (a), Section 2268.056, Government
Code, is amended to read as follows:
(a) The State Preservation Board [legislative body that the
presiding officer serves] shall provide administrative staff
support for the commission.
SECTION 30. Subsections (e), (g), and (i), Section
2268.058, Government Code, are amended to read as follows:
(e) The [If the] commission in a public hearing by majority
vote of the members present shall approve or disapprove each
detailed [accepts a] proposal submitted to the commission for
review and may [, the commission shall] provide its findings and
recommendations to the responsible governmental entity not later
than the 45th day after the date the commission receives complete
copies of the detailed proposal. If the commission does not
provide its findings or recommendations to the responsible
governmental entity by that date, the commission is considered to
[have declined review of the proposal and to] not have made any
findings or recommendations on the proposal.
(g) The commission shall include in any [review accepted
detailed proposals and provide] findings and recommendations
provided to the responsible governmental entity [that include]:
(1) a determination on whether the terms of the
proposal and proposed qualifying project create state
tax-supported debt, taking into consideration the specific
findings of the comptroller with respect to the recommendation;
(2) an analysis of the potential financial impact of
the qualifying project;
(3) a review of the policy aspects of the detailed
proposal and the qualifying project; and
(4) proposed general business terms.
(i) The [Except as provided by Subsection (e), the]
responsible governmental entity may not negotiate [begin
negotiation of] an interim or comprehensive agreement for a
detailed proposal that has been disapproved by [until] the
commission [has submitted its recommendations or declined to accept
the detailed proposals for review].
SECTION 31. Subsection (c), Section 211.013, Local
Government Code, is amended to read as follows:
(c) Except as provided by Section 2267.005, Government
Code, this [This] subchapter does not apply to a building, other
structure, or land under the control, administration, or
jurisdiction of a state or federal agency.
SECTION 32. Subsection (d), Section 31.155, 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 33. Section 552.153, Government Code, as added by
Chapter 1334 (Senate Bill No. 1048), Acts of the 82nd Legislature,
Regular Session, 2011, is repealed.
SECTION 34. Subsection (d), Section 2268.058, Government
Code, is repealed.
SECTION 35. (a) Not later than January 1, 2014, the
following are transferred from the Texas School for the Blind and
Visually Impaired to the Texas Facilities Commission:
(1) the powers, duties, functions, programs, and
activities of the Texas School for the Blind and Visually Impaired
relating to the maintenance of the school's physical facilities;
(2) any obligations and contracts of the Texas School
for the Blind and Visually Impaired that are directly related to
implementing a power, duty, function, program, or activity
transferred under this subsection; and
(3) all property and records in the custody of the
Texas School for the Blind and Visually Impaired that are related to
a power, duty, function, program, or activity transferred under
this subsection and all funds appropriated by the legislature for
that power, duty, function, program, or activity.
(b) The Texas Facilities Commission and the Texas School for
the Blind and Visually Impaired shall enter into a memorandum of
understanding as provided by Subsection (h-1), Section 30.022,
Education Code, as added by this Act, that:
(1) identifies in detail the applicable powers and
duties that are transferred between the two agencies by this Act;
and
(2) establishes a plan for the identification and
transfer of the records, personnel, property, and unspent
appropriations of the Texas School for the Blind and Visually
Impaired that are used for purposes of the commission's powers and
duties directly related to the maintenance of the school's physical
facilities under Section 30.022, Education Code.
SECTION 36. (a) Not later than January 1, 2014, the
following are transferred from the Texas School for the Deaf to the
Texas Facilities Commission:
(1) the powers, duties, functions, programs, and
activities of the Texas School for the Deaf relating to the
maintenance of the school's physical facilities;
(2) any obligations and contracts of the Texas School
for the Deaf that are directly related to implementing a power,
duty, function, program, or activity transferred under this
subsection; and
(3) all property and records in the custody of the
Texas School for the Deaf that are related to a power, duty,
function, program, or activity transferred under this subsection
and all funds appropriated by the legislature for that power, duty,
function, program, or activity.
(b) The Texas Facilities Commission and the Texas School for
the Deaf shall enter into a memorandum of understanding as provided
by Subsection (h-1), Section 30.052, Education Code, as added by
this Act, that:
(1) identifies in detail the applicable powers and
duties that are transferred between the two agencies by this Act;
and
(2) establishes a plan for the identification and
transfer of the records, personnel, property, and unspent
appropriations of the Texas School for the Deaf that are used for
purposes of the commission's powers and duties directly related to
the maintenance of the school's physical facilities under Section
30.052, Education Code.
SECTION 37. 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 38. Not later than December 1, 2016, the
Partnership Advisory Commission established under Chapter 2268,
Government Code, shall submit to the lieutenant governor, the
speaker of the house of representatives, and the appropriate
legislative standing committees recommendations on proposed
amendments to Chapters 2267 and 2268, Government Code.
SECTION 39. 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.