TxDoT SUNSET BILL: RED LIGHT CAMERAS, BILLBOARDS, AND MORE

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1 May 14, 2009 Number 19 TxDoT SUNSET BILL: RED LIGHT CAMERAS, BILLBOARDS, AND MORE The TxDoT sunset bill, H.B. 300, passed the Texas House on May 11 on a vote. Buried in this massive bill are the following city-related provisions. 1. If outdoor advertising located in a city or the city s extraterritorial jurisdiction must be removed because of the widening, construction, or reconstruction of a road, and if relocation of the outdoor advertising would be allowed under TxDoT rules but is prohibited by charter, ordinance, or a decision of the city, the city shall pay just compensation: (a) to the owner of the outdoor advertising for the right, title leasehold, and interest in the outdoor advertising; and (b) to the owner or, if appropriate, the lessee of the real property on which the outdoor advertising is located, for the right to erect and maintain the outdoor advertising. (This provision would shift one of the incidental costs of Texas highway projects from the state to cities. These provisions would force an unfunded mandate on Texas cities and deny city officials the authority to decide what the landscape of their city will look like. Essentially, these sections single out the billboard industry for special treatment and grant that industry greater rights than any other use along a highway. Special treatment for one industry is bad public policy and runs afoul of sound transportation planning.) 2. The rights associated with an off-premise sign that is lawfully in existence but no longer complies with current applicable laws and regulations, including those enacted by a city, vest in the owner of the off-premise sign. 3. TxDoT shall have jurisdiction over red light camera systems in this state and shall adopt rules governing them, including: (a) the specifications for the systems; (b)

2 the identification of intersections where a system may be installed; and (c) the operation and maintenance of the systems. 4. TxDoT may not approve the implementation or operation of a red light camera system that was not in operation on June 1, 2009, or for which a contract for the administration or enforcement of the system had not been entered into by a local authority on or before that date. 5. A city may not enter into or renew a contract for the administration or enforcement of a red light camera system after June 1, TxDoT by rule shall require that the change interval of a traffic light equipped with a red light camera system must be at least one second longer than the minimum change interval established in accordance with the Texas Manual on Uniform Traffic Control Devices. Items 3 through 6 would undermine the effectiveness of local law enforcement, jeopardize traffic safety and life-saving law enforcement technology, and eliminate state revenue. (The 25 cities using red light technology sent $7.3 million to the state in 2008, money that should have gone to trauma care but for an appropriations oversight by the legislature.) 7. The Texas Local Participation Transportation Program would be created to encourage local project sponsors (e.g., a city, county, regional mobility authority, or regional tollway authority) to participate in pass-through toll transportation projects. 8. A driver who does not have proof of insurance is presumed to have committed the offense of driving without insurance unless a peace officer determines through use of an electronic verification program that financial responsibility has been established for the vehicle. 9. The definition of junked vehicle is a vehicle that is self-propelled and displays an expired license plate or invalid motor vehicle inspection certificate or does not display a license plate or motor vehicle inspection certificate and that meets other criteria in current law. 10. The transportation of fireworks in unopened and original packaging may not be prohibited or regulated. 11. A common carrier, energy transporter, or gas utility has the right to lay and maintain lines over, under, and across a municipal street or alley only if it: (a) is subject to the jurisdiction, control, and regulation of the Railroad Commission of Texas; and (b) complies with all applicable state and federal regulations on the accommodation of utility facilities on a highway or right-of-way. The bill would also provide that: (a) the right to use a municipal street or alley is subject to the payment of franchise fees; (b) an energy transporter shall when necessary relocate its pipeline facilities at the energy transporter s expense unless it has a property interest in the land occupied by the pipeline to be relocated; and (c) a common carrier, energy transporter, or gas utility that lays or maintains lines shall promptly restore any transportation facility to its former condition of usefulness after the installation or maintenance of the line is complete. 2

3 12. A law enforcement agency may equip each vehicle used in a K-9 law enforcement program with a heat alarm system that is activated when the vehicle stops running or the temperature in the vehicle's interior becomes dangerous to a police dog in the vehicle. What started out as a bill to extend the existence of TxDoT and to modify or update that agency s authorities, responsibilities, and functions has become, in a part, an assortment of totally unrelated restrictions on cities. City officials concerned about any of these issues should contact their senator(s) now. EMINENT DOMAIN REFORM: BAD CONSTITUTIONAL CHANGES LAST FOREVER On Monday, May 11, the Texas House unanimously passed a joint resolution, H.J.R. 14 by Frank Corte, that proposes to amend the Texas Constitution in the following ways. Require that compensation for eminent domain be just. Require that land condemned by a city be strictly for the possession, occupation, and enjoyment of the property by the public at large or by a political subdivision of the State. Require that specific relocation and standard-of-living damages be paid for condemnation of a homestead or farm. As reported in a previous edition of the TML Legislative Update, a related bill (S.B. 18 by Duncan) is moving through the legislative process and is likely to pass. That bill addresses many of the same topics as H.J.R. 14, but with one important difference: it wouldn t change the Texas Constitution, as H.J.R. 14 proposes to do. That s important because changes to the Texas Constitution are for all practical purposes permanent. Should such a constitutional amendment do something unintended, legitimate eminent domain necessary for state and local public projects could grind to a halt. For example, the resolution as it passed the House requires that the public or the governmental unit exercising eminent domain exercise possession, occupation, and enjoyment of the condemned property. This language is intended to overturn the authority of governments to condemn land and sell or lease it to third parties for economic development purposes. What the resolution fails to resolve, however, are situations in which a government may wish to lease a small portion of condemned property to a third-party vendor who provides services a maintenance facility at an airport, for instance. As it stands, H.J.R. 14 would jeopardize the authority of all levels of government to allow private vendors to provide ancillary services at public facilities. 3

4 There may be other serious problems with the resolution that could surface later on during legal proceedings when it would be too late for the legislature to easily undo them. City officials should contact their senators now with the following message: Please oppose H.J.R. 14 because it will place a cloud of doubt over legitimate eminent domain actions. As a result, mistakes made in the process (and there will undoubtedly be some) could haunt Texas governmental operations for years to come. FEDERAL STIMULUS PACKAGE UPDATES The League s American Recovery and Reinvestment Act (ARRA) Web page can be accessed at by clicking on Federal Stimulus Information. Various information on the TML Web page has been updated, including information relating to: Rural Broadband: The U.S. Department of Agriculture has released grant guidance for $13.4 million to expand broadband service to rural areas. Community Development Block Grant (CDBG): CDBG entitlement cities must submit their application to their U.S. Department of Housing and Urban Development (HUD) field office by June 5, Neighborhood Stabilization Program (NSP): HUD has released its Notice of Funding Availability for the NSP funds provided under the ARRA. League staff will continue to monitor the implementation of the ARRA. SIGNIFICANT COMMITTEE ACTIONS H.B. 141 (Gonzalez Toureilles), relating to proof of financial responsibility for a vehicle. Reported from the House Transportation Committee. As reported, this bill would provide that: (1) a court shall dismiss a charge of not having proof of financial responsibility if the defendant proves that financial responsibility was valid at the time the offense occurred; and (2) the court may assess a $10 administrative fee on such occasions. H.B. 360 (Kuempel), relating to the Texas Municipal Retirement System. Reported from the Senate State Affairs Committee. H.B. 451 (Allen), requiring health benefit plans to provide coverage for autism in a child up to age nine. Reported from the House Insurance Committee. H.B. 987 (Creighton), relating to purchasing and change order requirements. Reported from the Senate Intergovernmental Relations Committee. 4

5 H.B (C. Howard), relating to property tax. Reported from the House Ways and Means Committee. As reported, this bill would: (1) eliminate the requirement that appraisal value notices must include the estimated tax liability based on an application of last year s tax rate to this year s appraised value; (2) require tax assessors to submit the appraisal roll to a city not later than 21 days after the date the appraisal roll is certified to the assessor; (3) require a city to calculate its effective tax rate not later than 30 days after it receives the certified appraisal roll from the assessor; (4) require the person who calculates the effective tax rate to submit the rate to the city council within five days of making the calculation; (5) require the calculation of a same services tax rate; and (6) require a city council, before giving notice of tax increase hearings, to take a record vote on the proposal to increase taxes and that the motion for that vote must be as follows: I move that a proposal to increase property taxes by the adoption of a tax rate of (specific tax rate) be placed on the agenda for the meeting to be held on (date on which the governing body anticipates adopting the tax rate); and much more. H.B (Thompson), relating to reallocation of sales tax. Reported from the House Ways and Means Committee. (Note: since this bill has not yet appeared on a House calendar, it will most likely miss the deadline for House passage.) H.B (Lucio), raising the cap on the annual water quality fee imposed on a city by the Texas Commission on Environmental Quality (TCEQ). Reported from the Senate Natural Resources Committee. As reported, this bill would, on September 1, 2009, raise the maximum fee from $75,000 to $100,000. The bill would also allow the TCEQ to thereafter raise the maximum fee annually by an amount that reflects growth in the consumer price index, up to a maximum amount of $150,000 annually. H.B (Callegari), relating to an agreement between a city and a municipal utility district. Reported from the House Natural Resources Committee. (Any city that has an agreement with a MUD should read this bill.) H.B (McCall), relating to housing and emergency shelters provided by a political subdivision for disaster victims. Reported from the Senate Intergovernmental Relations Committee. H.B (Rose), relating to water supply and sewer service corporations. Reported from the House Natural Resources Committee. As reported, this bill would affect the ways in which corporation directors are nominated and elected. (Note: since this bill has not appeared on a House calendar, it will most likely miss the deadline for House passage, but please see the companion bill, S.B by Wentworth, below.) H.B (J. Jackson), requiring that a ballot proposition allowing voters to approve a tax or the issuance of bonds must: (1) state the total dollar amount of bonds that will be issued or the amount of the tax or tax increase; and (2) describe any projects to be supported by the bonds. Reported from the House Elections Committee. 5

6 H.B (Hartnett), allowing a person who sues a city in a contract claim to recover attorney s fees. Reported from the House Judiciary and Civil Jurisprudence Committee. H.B (Callegari), strengthening the authority of special districts relative to cities. Reported from the House Natural Resources Committee. (Any city that has an agreement with a special district should read this bill.) H.B (Coleman), relating to tax increment financing. Reported from the House County Affairs Committee. H.B (Isett), altering the Prop 2 pollution control property tax exemption as follows: (1) provide that the exemption is available for certain carbon dioxide equipment necessary to comply with state or local rules, as opposed to current law which addresses only federal rules; and (2) provide that the exemption is available for carbon dioxide transport equipment, as opposed to current law which addresses only carbon dioxide capture equipment. Reported from the House Ways and Means Committee. (Note: since this bill has not yet appeared on a House calendar, it will most likely miss the deadline for House passage.) H.B (McCall), reported from the House Elections Committee. As reported, this bill would: (1) permit any city official to use Texas Ethics Commission electronic services and software to file certain reports; and (2) permit certain vendors to file a lobbying report with the Texas Ethics Commission whenever the vendor makes expenditures in relation to lobbying the city. H.B (Gattis), relating to a city s comprehensive development. Reported from the House Land and Resource Management Committee. As reported this bill would provide that: (1) the governing body of a city shall adopt by resolution or ordinance a comprehensive plan as defined by the bill that details current and future land uses and serves as a basis for making planning or zoning decisions of the city; (2) the governing body shall review its comprehensive plan not less often than every three years; (3) the governing body shall appoint an advisory committee to make recommendations regarding the adoption, amendment, and review of its comprehensive plan; (4) that advisory committee shall be made up of at least five members appointed by a majority vote of the governing body, and at least 40 percent of the membership of the advisory committee must be representatives of the real estate, development, or building industries who are not employees or officials of a political subdivision or governmental entity; (5) the governing body may not adopt or amend the comprehensive plan until it conducts at least one public hearing on the recommendations made by the advisory committee, and may not amend or adopt the comprehensive plan before the 30th day after the date the governing body receives the advisory committee's report, unless each of the landowners affected by the plan or amendment consents to the plan or amendment; (6) at the public hearing, a landowner may object to any land use applied to the landowner's tract by the comprehensive plan; (7) a landowner may petition the county commissioners court to appoint three disinterested persons, who reside in the county, as special commissioners to 6

7 assess the reasonableness of a land use applied to the landowner's tract under the city s comprehensive plan if the landowner objects in writing to the land use and has been unable to sell or develop the tract in conformity with the land use for a period of three years; (8) the special commissioners shall conduct their proceedings and shall have the same powers as special commissioners in an eminent domain proceeding; (9) if a majority of the special commissioners determines that a land use applied to a landowner's tract by the comprehensive plan is unreasonable, a majority of the special commissioners may determine a reasonable land use for the tract and order that the comprehensive plan be amended to reflect that use. (Note: since this bill has not yet appeared on a House calendar, it will most likely miss the deadline for House passage.) S.B. 254 (Estes), exempting volunteer fire departments from the state motor fuels tax. Reported from the House Ways and Means Committee. S.B. 257 (Estes), relating to the sale or delivery of salvia divinorum to a child. Reported from the House Criminal Jurisprudence Committee. S.B. 555 (Duncan), relating to indemnification provisions in construction contracts. Reported from the House Judiciary and Civil Jurisprudence Committee. S.B. 638 (Nichols), relating to the collateralization of public funds. Reported from the House Pension, Investments and Financial Services Committee. S.B (Estes), relating to the Texas Commission on Fire Protection (TCFP). Reported from the House Urban Affairs Committee. As reported, this bill would: (1) authorize the TCFP to establish minimum educational and training standards for volunteer firefighters; and (2) allow the TCFP to enter a default order if a fire department fails to take action to correct a violation found by the TCFP during an inspection; and much more. (Note: fire chiefs should review this bill thoroughly. This bill is now the same as H.B Also see the May 7, 2009, TML Legislative Update.) S.B (Ogden), relating to eminent domain. Reported from the Senate State Affairs Committee. As reported, this bill would provide that: (1) a condemnation petition must state that the facts to be proven are that the petitioner is authorized to condemn property for the purpose for which the property is sought, the use for which the property is sought is a public use, and the property sought is necessary to accomplish that public use; and (2) if a condemning entity fails to prove any of the facts, the court shall deny the condemnation and award to the property owner the owner s court costs and reasonable attorney s fees and expert witness fees incurred in relation to the condemnation proceeding. S.B (Wentworth), relating to water supply and sewer service corporations. Reported from the Senate Natural Resources Committee. As reported, this bill would affect the way in which corporation directors are nominated and elected. 7

8 S.B (Davis), relating to political advertising. Reported from the Senate State Affairs Committee. As reported, this bill would amend the statute criminalizing certain political advertising on measures as follows: (1) require that certain violations be knowing ; (2) provide that it is an affirmative defense to a violation if the city relied on a written opinion by a court, the attorney general, or the Texas Ethics Commission; and (3) require the Texas Ethics Commission to prepare an advance written advisory opinion regarding a potential communication on a measure. S.J.R. 42 (Duncan), proposing to amend the Texas Constitution to provide that public use, for the purposes of eminent domain, does not include the taking of property for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenue. Reported from the Senate State Affairs Committee. SIGNIFICANT FLOOR ACTIONS H.B. 229 (Pitts), relating to bond/insurance requirements for on-site sewage disposal systems and county regulation of such systems. Passed the House. H.B. 300 (Isett), relating to TxDoT sunset. Passed the House. (Please see the lead article in this update.) H.B (C. Howard), providing that: (1) in a county over 300,000 in population the members of the appraisal review board shall be appointed by the county commissioners court, not by the central appraisal district board; and (2) in all counties, the board of the appraisal district is expanded to include two elected members. Passed the House. H.B (Guillen), relating to inquests. Passed the House. As passed, this bill would authorize a municipal court judge to conduct an inquest and would require the city council to pay the fees of any experts the judge may require, unless the county agrees to pay the fees. (Note: it is assumed that, under the bill, the city could refuse to conduct an inquest.) H.B (Gattis), relating to adoption of property tax rates. Passed the House. As passed, this bill would provide that when a member of a municipal governing body makes a motion to set a property tax rate that exceeds the effective tax rate, the member must state the percentage by which the proposed rate exceeds the effective tax rate, and the city must include the same information in the adopted tax rate ordinance or resolution and on the home page of any Internet Web site operated by the city. H.B (Anchia), relating to elections. Passed the House. As passed, this bill would require the general custodian of election records, upon the receipt of an electronic voting system from a vendor, to: (1) verify that the system is certified by the secretary of state; (2) perform a hardware diagnostic test on the system; (3) 8

9 perform a public test of logic and accuracy on the system, as well as any additional test required by the secretary of state; (4) create a pre-election security procedure; (5) secure access control keys or passwords to voting system equipment; and (6) create a contingency plan for addressing the failure of an electronic voting machine. H.B (Alvarado), relating to speed limits. Passed the House. As passed, this bill would limit the ability of cities to regulate vehicular speed in non-residential areas. H.B (Oliveira), extending tax abatement authority through September 1, Passed the House. H.J.R. 14 (Corte), proposing to amend the Texas Constitution with regard to eminent domain authority. Passed the House. (Please see the related article elsewhere in this update.) S.B. 61 (Zaffirini), relating to the offense of failing to secure a child in a motor vehicle. Passed the House. As passed, this bill would impose a 15-cent state fee on each conviction in municipal court for failure to secure a child passenger in a motor vehicle, with the revenue being dedicated to the purchase of child safety seats for low-income families. S.B. 820 (Duncan), relating to the adoption of building codes. Passed the House. As passed, this bill applies only to cities over 100,000 in population. It would require a city to either: (1) have an advisory board to provide input on the city s adoption of model codes, or (2) provide enhanced notice of and public comment on the adoption of model codes. The bill would also generally require a city to delay implementation and enforcement of a code provision for 30 days following its adoption. S.B (Ogden), relating to eminent domain. Passed the Senate. As passed, this bill would provide that: (1) a condemnation petition must state that the facts to be proven are that the petitioner is authorized to condemn property for the purpose for which the property is sought, the use for which the property is sought is a public use, and the property sought is necessary to accomplish that public use; and (2) if a condemning entity fails to prove any of the facts, the court may deny the condemnation and award to the property owner the owner s court costs and reasonable attorney s fees and expert witness fees incurred in relation to the condemnation proceeding. S.B (Wentworth), providing that in lieu of furnishing requested information, a city may inform an open records requestor that the requested information is available on the city s Web site and provide a means of accessing the Web site to the requestor. Passed the Senate. S.B (Hegar), relating to groundwater control districts (GWCDs). Passed the Senate. As passed, this bill would provide that a district may not transfer groundwater out of the district unless the applicant shows evidence of beneficial use. 9

10 S.B (Davis), relating to political advertising. Passed the Senate. As passed, this bill would amend the statute criminalizing certain political advertising on measures as follows: (1) require that certain violations be knowing ; (2) provide that it is an affirmative defense to a violation if the city relied on a written opinion by a court, the attorney general, or the Texas Ethics Commission; and (3) require the Texas Ethics Commission to prepare an advance written advisory opinion regarding a potential communication on a measure. S.J.R. 42 (Duncan), proposing to amend the Texas Constitution to provide that public use, for the purposes of eminent domain, does not include the taking of property for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenue. Passed the Senate. TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League. 10