HOUSE RESEARCH ORGANIZATION • HOUSE OF REPRESENTATIVES P.O. Box 2910, Austin, Texas 78768-2910 (512) 463-0752 • http://www.hro.house.state.tx.us

Steering Committee: Bill Callegari, Chairman Jose Menendez, Vice Chairman

Rafael Anchia Tryon Lewis Joe Pickett Drew Darby Harold Dutton Eddie Lucio III Elliott Naishtat Ralph Sheffield Joe Deshotel Susan King Geanie Morrison Rob Orr Todd Smith

HOUSE RESEARCH ORGANIZATION

daily floor report

Wednesday, March 30, 2011 82nd Legislature, Number 44 The House convenes at 10 a.m.

Nine bills have been set on the Daily House Calendar for second reading consideration today and are analyzed in today’s Daily Floor Report. The bills are listed on the following page.

The House also will consider a Local, Consent, and Resolutions Calendar today.

Bill Callegari Chairman 82(R) – 44

HOUSE RESEARCH ORGANIZATION Daily Floor Report Wednesday, March 30, 2011 82nd Legislature, Number 44

Page: HB 215 by Gallego Requirements for photograph and live lineup identification policies 1 HB 310 by T. King Procedures for water supply or sewer service corporation director elections 6 HB 338 by Aycock Disclaimers on noxious and invasive plant lists by public entities 10 HB 563 by Pickett Allowing creation of transportation reinvestment zones for any project 15 HB 612 by Hopson Penalty range for trustee failure to remit purchase price of timber 21 HB 613 by Hopson Penalties for harvesting standing timber without an owner’s permission 23 HB 716 by S. Miller Allowing sale of seats on helicopter hunts for feral hogs and coyotes 25 HB 1165 by Keffer Exempting certain electric cooperatives from gas utility regulations 29 HB 1404 by Sheffield Rules of conservatorship for child of deployed military parent 32

HOUSE HB 215 RESEARCH Gallego ORGANIZATION bill analysis 3/30/2011 (CSHB 215 by Hartnett)

SUBJECT: Requirements for photograph and live lineup identification policies

COMMITTEE: Criminal Jurisprudence — committee substitute recommended

VOTE: 8 ayes — Gallego, Hartnett, Aliseda, Burkett, Carter, Y. Davis, Rodriguez, Zedler

0 nays

1 absent — Christian

WITNESSES: For — Charles Chatman, Scott Henson, Cory Session, Billy Smith, Innocence Project of Texas; David Gonzalez, Texas Criminal Defense Lawyers Association; Kathryn Kase, Timothy Cole Advisory Panel on Wrongful Convictions and Texas Defender Service; Travis Leete, Texas Criminal Justice Coalition; Mike Ware, County District Attorney’s Office; Johnnie Lindsey; Thomas McGowan; Christopher Scott; Sandra Thompson; Dorothy Budd; Cornelius Dupree; James Giles; (Registered, but did not testify: William Allison, Texas Center for Actual Innocence; John Chancellor, James McLaughlin, Texas Police Chiefs Association; Scott Cobb, Alison A. Dieter, Texas Moratorium Network; Jodyann Dawson, Texans Care for Children; Hooman Hedayati, Witness to Innocence; Stefanie Collins)

Against — None

On — Edwin Colfax, Texas Task Force on Indigent Defense; Barbara Hervey; (Registered, but did not testify: Lon Craft, Texas Municipal Police Association)

DIGEST: CSHB 215 would require law enforcement agencies to adopt a detailed written policy for photograph and live lineup identification procedures. The written policy could be based on one developed by the Bill Blackwood Law Enforcement Management Institute of Texas at Sam State University or developed independently if it conformed to the minimum requirements in the bill.

The written policy would have to be based on credible field, academic, or laboratory research on eyewitness memory and on relevant policies,

- 1 - HB 215 House Research Organization page 2 guidelines, and best practices designed to reduce erroneous eyewitness identifications and to enhance eyewitness identification reliability. The policy would have to address the following topics:

the selection of photo and live lineup ―filler‖ photos or participants (persons that police knew did not commit the crime but were included in the lineup); instructions given to a witness before a photo or live lineup; the documentation and preservation of a photo or live lineup’s results, including the documentation of witness statements, regardless of the outcome; procedures for administering a photo or live lineup to an illiterate person or person with limited English proficiency; procedures for assigning an administrator who: was unaware of which member of the live lineup was the suspect or, if that was not practicable, alternative procedures to prevent opportunities to influence the witness, or was capable of administering a photo array in a blind manner or consistent with best practices designed to prevent opportunities to influence the witness; and any other research-supported procedures or best practices designed to reduce erroneous identifications and enhance the objectivity and reliability of eyewitness identifications.

The Blackwood Institute would have to develop its model policy and training materials in consultation with large, medium, and small law enforcement agencies as well as law enforcement associations, scientific experts in eyewitness memory research, and other appropriate organizations no later than December 31, 2011. A period of public comment would have to be provided before the institute’s adoption of the policy. Law enforcement agencies then would have until September 1, 2012, to adopt a policy.

By December 31 of each odd-numbered year, the Blackwood Institute would have to review the model policy and training materials and modify them as appropriate. By September 1 of each even-numbered year, each law enforcement agency would have to review its policy and modify it as appropriate.

Evidence of compliance or noncompliance with the policy would be relevant and admissible in a criminal case, but compliance would not be

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necessary for an out-of-court eyewitness identification to be admissible. A failure to comply substantially with the policy would not bar the admission of eyewitness identification testimony in court.

The bill would take effect September 1, 2011, and would apply only to a photo or live lineup identification procedure conducted on or after September 1, 2012, regardless of when the crime was committed.

SUPPORTERS CSHB 215 would produce more reliable evidence and help prevent SAY: innocent people from being wrongfully convicted. According to the Innocence Project of Texas, Texas leads the nation in the number of wrongful convictions exposed by DNA evidence, and more than 80 percent of them were caused by mistaken eyewitness identification. Yet only 12 percent of law enforcement agencies in the state have a written policy on how best to conduct eyewitness identification procedures. Other states such as North Carolina, New Jersey, and Wisconsin have enacted legislation similar to CSHB 215.

This bill is based on recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions — which was named for the first Texan to be posthumously exonerated by DNA testing — and has collaborative support from law enforcement, prosecutors, judges, the Governor’s Office, and inmates’ advocates. As a result of that collaborative process, the bill would ensure that large, medium, and small law enforcement agencies were consulted in the development of the model policy and that modifications would be made every few years as new research emerged and agencies learned what procedures were or were not effective. The bill would preserve flexibility by not dictating any actual procedures but by requiring only that certain aspects of the identification procedure be addressed when policies were adopted.

The photo or live lineup is a critical piece of evidence that should be carefully collected. Poor procedures can taint the evidence and undermine its validity, leading in the worst cases to misidentified persons being wrongfully convicted. Blind administration procedures, during which the administrator of the eyewitness identification procedure does not know who the suspect is, would prevent the administrator from influencing the witness. Alternative procedures to prevent opportunities to influence the witness also could be adopted when blind administration was not practicable, such as for a very small law enforcement agency. If the adopted policy was not used, the defense could assert why the

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identification procedure was inadequate and how it could have resulted in mistaken identification.

A wrongful conviction is devastating to the convicted person and to his or her family. It also jeopardizes public safety, since a wrongful conviction lets the real perpetrator remain free to commit more crimes. The best practices proposed by this bill would not be difficult to implement, nor would they impede prosecution. Prosecutions that relied on best-practice identifications would produce more reliable evidence and strengthen each legal case. Identifications resulting from noncompliant lineups still would be allowed into evidence at trial. During cross-examination, an officer could explain the reason for using a procedure that did not comply with the model policy.

OPPONENTS Improvements made in the past two decades have resulted in a just and fair SAY: criminal justice system that protects the public. It would be better to let law enforcement agencies develop their own identification procedures depending on their resources and individual circumstances.

Once a model policy was developed and adopted by the Blackwood Institute, it could take a few years to change procedures that were not working, during which time outdated procedures would continue to be used. If law enforcement agencies could update procedures based on their own circumstances and experiences, with no state standards, the procedures would be updated more frequently.

OTHER While law enforcement agencies should adopt and implement best OPPONENTS practices for photo and live lineups, CSHB 215 has no enforcement SAY: mechanism to ensure compliance with these practices. Since research has shown how unreliable eyewitness identifications can be, identifications made from noncompliant lineups should not be admissible as evidence in court.

If the noncompliant identification is allowed to be admissible in court, then the jury at least should be instructed that witness identification evidence is not foolproof and is subject to the limitations of human memory. In addition to the jury instruction, or as an alternative, the bill should require corroborative evidence to admit the noncompliant identification in court.

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Research suggests that witnesses become more certain of their identifications as time progresses, even though scientific evidence shows the fallibility of human memory. For this reason, each witness should be required to submit a statement of certainty about his or her identification. The statement of certainty would remind the jury of the imperfect reality of human memory.

NOTES: The Senate companion bill, SB 121 by Ellis, passed the Senate by 30-0 on March 16 and has been referred to the House Criminal Jurisprudence Committee.

The committee substitute differs from the original version of the bill by specifying that the Blackwood Institute would have to consult with small, medium, and large law enforcement agencies in the development of its model policy. The substituted version also changed what the model policy would be based on, from scientific research on eyewitness memory to credible field, academic, or laboratory research on eyewitness memory.

Under the original bill, the Blackwood Institute would have to review its policy annually. Under the substitute, the institute would have to review its policy every odd-numbered year, and each law enforcement agency would have to review its policy every even-numbered year. The substitute also differs by requiring a period of public comment before the institute’s adoption of the model policy, and by changing the date by which the model policy must be disseminated from June 1, 2012, to December 31, 2011.

During the 2009 regular session, SB 117 by Ellis, a similar bill, passed the Senate and was placed on the House General State Calendar, but no further action was taken.

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HOUSE RESEARCH HB 310 ORGANIZATION bill analysis 3/30/2011 T. King

SUBJECT: Procedures for water supply or sewer service corporation director elections

COMMITTEE: Natural Resources — favorable, without amendment

VOTE: 8 ayes — Ritter, T. King, Beck, Creighton, Hopson, Larson, D. Miller, Price

0 nays

3 absent — Keffer, Lucio, Martinez Fischer

WITNESSES: For — Brian Macmanus, Texas Rural Water Association, East Rio Hondo Water Supply Corporation; (Registered, but did not testify: Janet Adams, Fort Davis Water Supply Corporation; Shanna Igo, Texas Municipal League; Joe Morris, Aqua Water Supply Corporation)

Against — None

BACKGROUND: A water supply or sewer service corporation is a member-owned nonprofit corporation that provides water or sewer service. Current law requires such corporations to elect directors and to adopt written election procedures.

DIGEST: HB 310 would add specific requirements for the procedures governing elections of directors for water supply or sewer service corporations.

Qualifications. To qualify as a candidate for director, a person would have to be a member or shareholder of the corporation and at least 18 years old on the first day of the term being filled. A director would be disqualified if determined by a probate court to be totally mentally incapacitated or partially mentally incapacitated without the right to vote, or if convicted of a felony and not pardoned or released from any disabilities resulting from the conviction. If the corporation’s board of directors determined that a director was disqualified, it would have 60 days after its decision to remove and replace the director with a person qualified under the requirements in the bill.

Application. A candidate for director would have to file an application with the corporation that included the following information:

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the particular director position sought, including any position number; a petition with the signatures of either 25 members or shareholders or 5 percent of the members or shareholders, whichever amount was smaller; the applicant’s written consent to serve, if elected; the applicant’s biographical information; and a statement detailing the applicant’s qualifications, including a statement indicating compliance with the qualifications specified in the bill.

The candidate would have to file the application no later than 45 days before the annual meeting. The corporation would have to make applications available at its main office and provide applications electronically or by mail upon request.

Ballot. The corporation would have to mail the election ballot, written notice of the meeting, and a statement detailing each candidate’s qualifications and biographical information to each member or shareholder no later than 30 days before the annual meeting at which directors would be elected.

Each election ballot would have to include the number of open director positions and the name of each candidate.

Election procedures. HB 310 would allow the corporation board to adopt rules or bylaws to ensure a fair and transparent election process. The board would have to choose an independent election auditor no later than 30 days before the annual meeting. The auditor would not have to be an experienced election judge or auditor and could be a volunteer, but could not be an employee, director or director candidate, or independent contractor hired by the corporation for its normal business.

Members or shareholders could vote in person at the annual meeting, by mail, or by hand-delivering the ballot. If voting by mail or hand-delivery, the completed election ballot would have to be received at the corporation’s main office or the office of the independent election auditor by noon on the business day before the annual meeting.

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The independent election auditor would have to receive and count the votes before the adjournment of the annual meeting, and would have to provide the board with a written account of the results.

For each director position, the candidate with the highest number of votes would be elected. If two or more candidates tied for the highest number of votes, the candidates would have to draw lots to determine the winner.

Meetings. To conduct business at a meeting, a majority of members and shareholders present would represent a quorum. The count of members and shareholders present would include all persons who had mailed or delivered election ballots to the election auditor or to the corporation.

The board would be required to amend its written procedures for holding annual or special meetings of the members or shareholders to comply with the changes made under the bill. The procedures would have to include the following information:

notice of the proposed agenda, location, and date of the meeting to members or shareholders; procedures for the election of directors, including the application process for candidates; approval of the election ballot form that would be used at the meeting; and validation of eligible voters, ballots, and election results.

Proxy votes prohibited. Voting by proxy would no longer be allowed. The board would have to adopt an official ballot form that would be used at meetings. The adopted ballot form would be the only valid ballot used to conduct business at meetings.

Effective date. HB 310 would take effect September 1, 2011, and would not affect the term of a director who began serving on the board before that date. A director serving on the effective date could be reelected or reappointed as long as the director met the qualifications detailed in the bill.

SUPPORTERS HB 310 would ensure that elections of directors for water supply and SAY: sewer service corporations be conducted fairly and transparently by defining uniform election procedures. Current law does not adequately specify these procedures. The bill would prevent boards from hand-

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picking candidates and then controlling elections with proxy votes. All elections would be supervised by an independent election auditor who had no conflict of interest with the corporation.

The bill also would encourage transparency by requiring the board to provide adequate notice of meetings and candidate information to the members and shareholders. All qualified members or shareholders would have the opportunity to be elected or appointed as a director, which would promote greater involvement of members and shareholders in elections.

All water supply and sewer service corporations would benefit from the efficient elections processes outlined in the bill. By redefining how a quorum was established, the bill would ensure timely elections that accurately reflected the ballots cast by individual members and shareholders rather than those cast by representative proxy votes. Currently, if a quorum is not established, the election process must be repeated, which incurs significant cost. This bill would cut costs by eliminating the frequent need for repeat elections.

OPPONENTS By prohibiting proxy voting, HB 310 would inflict rigid statewide SAY: requirements on all water supply and sewer service corporations. The additional requirements would impose unnecessary burdens on smaller water supply and sewer service corporations and those with no alleged elections abuse. Also, by requiring the selection of an independent election auditor, the bill would create yet another obligation with which the

corporations would have to comply. The time and resources spent seeking and selecting an independent election auditor would be better spent elsewhere.

NOTES: The Senate companion bill, SB 310 by Fraser, passed the Senate by 31-0 on the Local and Uncontested Calendar on March 24 and has been referred to the House Natural Resources Committee.

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HOUSE HB 338 RESEARCH Aycock ORGANIZATION bill analysis 3/30/2011 (CSHB 338 by Lozano)

SUBJECT: Disclaimers on noxious and invasive plant lists by public entities

COMMITTEE: Agriculture and Livestock — committee substitute recommended

VOTE: 6 ayes — Hardcastle, C. Howard, Isaac, Landtroop, Lozano, Miles

0 nays

3 absent — C. Anderson, Hughes, Kleinschmidt

WITNESSES: For — Jim Reaves, Texas Nursery & Landscape Association; Marida Favia del Core Borromeo, Exotic Wildlife Association; (Registered, but did not testify: Allen Beinke, River Authority; Ken Hodges, Texas Farm Bureau; Bob Turner, Texas Seed Trade Association, Texas Poultry Federation, Texas Sheep & Goat Raisers)

Against — Meg Ingis, Austin Chapter of the Native Plant Society; Kathleen Trizna, Native Plant Society of Texas; Dale Bulla; Cheryl Hamilton; (Registered, but did not testify: Pat Bulla)

On — Damon Waitt, Lady Bird Johnson Wildflower, Texas Invasive Plants and Pest Council; Clayton Wolf, Texas Parks and Wildlife Department; Catherine Wright-Steele, Texas Department of Agriculture

BACKGROUND: Agriculture Code, sec. 71.151(a) requires the Texas Department of Agriculture (TDA) to publish a list of noxious and invasive plant species that have serious potential to cause economic or ecological harm to the state. This list is published in 4 TAC, part 1, chap. 19, subch. T, sec. 19.300. The importation, distribution, or sale of a plant on this list is a class C misdemeanor (maximum fine of $500).

Agriculture Code, sec. 134.020 requires the Texas Parks and Wildlife Commission (TPWC) to publish a list of harmful or potentially harmful exotic aquatic plant species. This list is published in 31 TAC, part 2, chap. 57, subch. A, section 57.111. The importation, possession, propagation, or sale of a plant on this list is a class B misdemeanor (up to 180 days in jail and/or a maximum fine of $2,000).

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Agriculture Code, sec. 71.153 prohibits political subdivisions from restricting the distribution, sale, or planting of noxious or invasive plants.

DIGEST: CSHB 338 would require any public entity, other than TDA, that produced a list of noxious or invasive terrestrial plants for public distribution to commercial or residential landscapers to provide a specific disclaimer with that list. The disclaimer would have to state that the entity's plant list was only a recommendation and had no legal effect in the state of Texas. It also would have to state that it was lawful to sell, distribute, import, or possess a plant on the list unless the Texas Department of Agriculture labeled the plant as noxious or invasive on the department's plant list.

A public entity other than TDA that produced a list of noxious or invasive terrestrial plant species in printed materials for public distribution to commercial or residential landscapers, including online lists, would have to post the disclaimer in at least 12-point type in a readily visible, conspicuous location for those viewing the list. The bill would require TDA to establish rules for public entities including the disclaimer with lists in other media, including billboards, television, and radio.

CSHB 338 would take effect September 1, 2011, and would apply only to a list published or distributed on or after the bill's effective date.

SUPPORTERS CSHB 338 would help decrease public confusion about which of the many SAY: available invasive plant lists was official and legally enforceable. It would ensure publicly funded entities were fully informing the public about the legality of plants on their informal lists as compared to the official TDA plant list, which best balances the economic and ecological interests of the state. Greater clarity would improve compliance.

The difficulty the Parks and Wildlife Department (TPWD) has had slowing the rampant spread of invasive aquatic plants underscores the importance of maintaining a single, clear, trusted resource of invasive terrestrial plants for the public. The disclaimer required by the bill would complement the efforts of the Texas Invasive Species Coordinating Committee (TISCC), of which TDA is a member agency. TISCC maintains a website (www.tiscc.texas.gov) that links the public only to the two official state invasive species lists to avoid confusion with non-official lists.

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By requiring that individuals be directed to the official, publicly vetted TDA list in the disclaimer, CSHB 338 would balance the worthy priorities of protecting the state's biodiversity and protecting the state's horticulture businesses, which lose sales when unofficial lists lead Texans to believe legal plants are illegal. The TDA list already contains 31 of the state's most ecologically and economically harmful plants, and the amendment process to add new plants to the list is open to any individual or organization. CSHB 338 would protect nursery and landscape businesses’ financial interests and preserve much-needed state sales tax revenue by emphasizing, via the disclaimer, the legality of buying, selling, and possessing plants that are not banned by TDA.

CSHB 338 would not impede regional ecological problem-solving. Local authorities could request to have harmful plants added to the state list, and TDA could organize the list by region, so any possible weakening of local efforts from the disclaimer would be compensated for at the state level. Such additions to the official list could be made quickly enough that the regional problems would not have worsened significantly. The sufficiency of the TDA list is evidenced by the fact that no group has brought an amendment to TDA or TISCC since 2007, when the list was last amended.

CSHB 338 would encourage state agencies to work together to improve regulation of invasive plants, including perfecting the TDA list. CSHB 338 would allow TPWD to continue providing unencumbered technical assistance to ranchers and other such land owners by specifying that the disclaimer need only be provided with lists prepared for commercial and residential landscapers.

OPPONENTS CSHB 338 would substantially weaken the ecological fight against SAY: invasive plants in the state. By emphasizing the insufficient TDA plant list, the bill would encourage the sale of legal but harmful plants, heightening expenses for the public entities and private citizens that must combat these damaging plants.

The disclaimer required under CSHB 338 would increase public confusion by undermining the credibility of widely used, non-TDA lists. The TDA list is difficult to find, located only in a single table buried in the Administrative Code. The obscurity of the TDA list stands in contrast with the high visibility of the TPWD list. TPWD participates in the multi-sector Texas Invasive Plants and Pest Council (TIPPC), which educates the public via an easily found, user-friendly website of plants suspected of

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causing invasive problems (www.texasinvasives.org). TDA does not participate in this collaborative outreach effort.

By giving the TDA plants list exclusive supremacy over all other lists in the mandatory disclaimer, CSHB 338 would consciously undercut ecological protection efforts for the sake of the interests of a particular politically influential industry. The contents of the TDA prohibited plants list have been unduly influenced by the nursery and landscape industry rather than by science. As a result, the TDA list is wildly deficient, omitting about 100 species that biologists and ecologists have concluded damage the ecosystem.

CSHB 338 would be costly for both public and private entities by emphasizing the legality of de facto invasive plants. The damage caused by and the removal of invasive plants are extremely expensive, in terms of both time and money. Nurseries have a right to sell a variety of plants and make a profit, but taxpayer dollars, which local governments and state agencies must use to pay for the spread of these destructive plants, should not have to subsidize those private profits.

Ecological problems are frequently regional. CSHB 338 would undercut local efforts to restrict harmful plants. Waiting until a problem was statewide would make it harder and more costly to address. No provision in the bill or existing statute would require TDA to consider suggested amendments to its list from local governments, much less adopt them.

CSHB 338 would create an adversarial relationship between state agencies when they should be cooperating to tackle the shared problem of invasive plants. By omitting the word "terrestrial," the disclaimer language of CSHB 338 could be problematic if displayed on a mixed terrestrial-and- aquatic invasive plants list. The TDA list does not encompass the entirety of the TPWD exotic plants list, which also is legally enforceable.

OTHER A disclaimer on non-TDA lists would be reasonable, but the proposed OPPONENTS disclaimer language would go too far in undermining the credibility and SAY: expertise of the organization that produced the list. ―Not legally binding‖ would be acceptable, but describing a scientifically supported, public entity-backed list as simply a ―recommendation‖ would be too dismissive.

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NOTES: The committee substitute:

changed the disclaimer language to highlight the legality of selling, distributing, importing, and possessing a plant not on the TDA list; specified that only lists for public distribution to commercial or residential landscapers would be affected; and made the bill requirements applicable only to lists published or distributed on or after the effective date.

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HOUSE HB 563 RESEARCH Pickett, Rodriguez, Harper-Brown ORGANIZATION bill analysis 3/30/2011 (CSHB 563 by Phillips)

SUBJECT: Allowing creation of transportation reinvestment zones for any project

COMMITTEE: Transportation — committee substitute recommended

VOTE: 9 ayes — Phillips, Darby, Y. Davis, Fletcher, Harper-Brown, Lavender, Martinez, Pickett, Rodriguez

0 nays

2 absent — Bonnen, McClendon

WITNESSES: For — Brian Cassidy, Regional Mobility Authority (RMA), Alamo RMA, Grayson County RMA, Cameron County RMA, North RMA, Camino Real RMA, PTP; Duane Gordy, Cherokee Development (Registered, but did not testify: Brandon Aghamalian, City of El Paso; Jim Allison, County Judges and Commissioners Association of Texas; Mark Borskey, Texas Motor Transportation Association; Victor Boyer and Rider Scott, Transportation Advocates of Texas; Victor Boyer, San Antonio Mobility Coalition, Inc.; Carlos Contreras, City of San Antonio; Rudy Garza, City of Corpus Christi; Darrin Hall, City of Houston; Jeff Heckler, Public Finance Investment Corporation; Shanna Igo, Texas Municipal League; Dennis Kearns, BNSF Railway; Jim Lewis, County Judge and Commissioner of Texas; Mark Mendez, Tarrant County Commissioners Court; Lawrence Olsen, Texas Good Roads/Transportation Association; T.J. Patterson, City of Fort Worth; Brinton Payne, Fort Worth Chamber of Commerce; Paul Sugg, Texas Association of Counties; Vic Suhm, Tarrant Regional Transportation Coalition; Michael Vasquez, Texas Conference of Urban Counties)

Against — None

On — Amadeo Saenz, Texas Department of Transportation; Don Dixon

BACKGROUND: In 2003, the 78th Legislature enacted HB 3588 by Krusee, which established the pass-through system for financing highway construction. Pass-through financing allows public or private entities to construct state highway projects and receive payment from the Texas Department of Transportation (TxDOT) following completion of the project. Pass- through ―tolls‖ are negotiated payments made incrementally to the entities

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building a road and are based on traffic volume on the new road. The payments are made as if tolls were being collected from motorists (though they are not) by the operators upon project completion.

The 80th Legislature in 2007 enacted SB 1266 by Brimer, which established transportation reinvestment zones for municipalities and counties that enter into a pass-through financing agreement with TxDOT. Under the bill, municipalities and counties may dedicate to a transportation reinvestment zone a tax increment from property taxes collected in the zone yearly. For a municipality or county establishing a transportation investment zone:

a tax increment is the amount of property taxes assessed for one year on the captured appraised value of real property in the zone; the captured appraised value is the total appraised value of all real property in a zone for the year minus the entity’s tax increment base; and the tax increment base of a local entity is the total appraised value of all real property located in a zone for the year in which the zone was designated.

DIGEST: CSHB 563 would allow a municipality or county to establish a transportation reinvestment zone for any transportation project, including a highway improvement, passenger or freight rail facility, ferry, airport, pedestrian or bicycle facility, intermodal hub, or transit system. The bill would make conforming changes to state law to reflect the expanded range of transportation projects eligible for reinvestment zones. It also would apply to previously designated transportation reinvestment zones.

A municipality or county could contract with a public or private entity to develop or otherwise improve a transportation project in a reinvestment zone and could pledge funds from the zone to that entity. A municipality or county could not rescind a pledge of funds to an entity that owed a debt on bonds or other obligations until those debts were satisfied. The boundaries of a zone could be adjusted as needed, but the area of a zone could not be reduced if the change might affect any outstanding bonds or other obligations used to fund the project. Any property added to the zone would have to abide by existing procedures for designating a zone.

An ordinance or other law designating a reinvestment zone would have to designate the base year used to establish a tax increment in the

- 16 - HB 563 House Research Organization page 3 municipality or county. The bill would restrict the portion of the increment specified to be used in funding the transportation project, as well as aesthetic improvements within the zone. The municipality or county could use the remaining funds from the increment for other purposes.

A county could assess the cost of a road development project against property within the zone. An assessment of property in the zone could be paid in installments following established procedures, but an installment could not exceed the value of a tax abatement authorized under existing law. A county could apply procedures in current law governing public improvement districts for the purposes of assessing value and issuing bonds for the cost of the project in the zone.

If any part of the project were subject to TxDOT oversight, the agency would have to delegate to the municipality or county full responsibility for the development of the project at their request and to the extent that doing so was permitted by law. A municipality or county that assumed responsibility for a project would have to reach an agreement with TxDOT over the development process, each party’s responsibilities, and timelines for approvals. If the project was on the state highway system, it would have to comply with state and federal development and design criteria unless TxDOT made a specific exception. TxDOT would have to review and approve a project on the state highway system.

A municipality or county could not be penalized with a reduction in traditional transportation funds due to the establishment of a transportation reinvestment zone. Funds that TxDOT designated for a project prior to the establishment of a reinvestment zone could not be reduced due to the designation of the zone. Funds for TxDOT districts similarly could not be reduced due to the establishment of a reinvestment zone by a municipality or county in the district.

The bill would take effect September 1, 2011.

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SUPPORTERS CSHB 563 would enhance local governments’ ability to designate SAY: transportation reinvestment zones and thereby provide an important financing tool to expand and improve transportation options for local communities. The bill would be a logical progression in the use of reinvestment zones for transportation projects. Under current law, reinvestment zones — which allow a local government to dedicate tax revenue generated by an increase in property values around a transportation project to pay for the costs associated with developing the project — are confined to only highway projects funded by a pass-through financing agreement with TxDOT.

A pass-through financing agreement allows a local government to pay the development costs of a road project and then seek reimbursement from TxDOT based on the estimated number of vehicles that travel on the road. CSHB 563 would broaden local governments’ ability to establish reinvestment zones for transportation projects. Under the bill, cities would capture revenue from increased property values associated with the development of a transportation project. Counties would accomplish this through a different mechanism — by abating taxes within a zone and creating a corresponding road district to capture future additional revenue equal to the abated county tax.

The bill would take critical steps to provide another transportation financing option to local governments in an era of increasing congestion and declining resources for transportation from the state and federal government. While raising motor fuels taxes may be a more far-reaching approach to securing additional funding for highways, it is not at present economically or politically feasible. In a context of fixed state and federal funds for transportation projects, the Legislature must pursue all options available for developing transportation projects.

CSHB 563 would clarify and update existing laws on reinvestment zones and would make assurances that a government could neither rescind certain agreements attached to a zone nor modify a zone if the proposed change had an impact on pre-committed revenue. These changes would help ensure the viability of reinvestment zones and reassure parties seeking to develop a highway project in such a zone.

Expanding the use of reinvestment zones statewide would allow local governments to maximize available resources without tax increases. Despite some claims, the bill would not authorize a tax increase directly or

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indirectly. Although property values in a zone may increase as a result of economic development stemming from a transportation project, no property is taxed at a higher rate due to its inclusion in a reinvestment zone.

Allowing a county or municipality to designate a reinvestment zone for a wide variety of transportation projects would maximize tools available to local governments to reduce congestion, including roads, rail, mass transit, and pedestrian and bicycle mobility projects. Enabling local governments to fully use all the resources at their command is necessary to confront the great transportation challenges that face Texas.

Claims that CSHB 563 could promote toll projects are misguided. The bill actually would prevent the expansion of toll roads by providing a viable avenue for building public, non-tolled roads. Expanded reinvestment zones could tap a revenue stream that is independent of tolls but that nonetheless could be used to secure bonds and other financing. Providing an alternative financing option would allow strapped local governments to develop new roads without using financing associated with tolls.

OPPONENTS CSHB 563 would continue the state’s piecemeal approach to SAY: transportation funding without addressing the core issue facing the state — a motor fuels tax that has been declining in relative value since 1991. Finance zones would not provide any additional state revenue to local entities and would further a long-standing precedent of evading difficult decisions about transportation funding for the state. Reinvestment zones likely would be used on a limited basis — there are currently only a handful in existence — in select areas and would not address statewide highway funding shortfalls.

Increasing opportunities to establish reinvestment zones also would represent an expansion of the troubling practice of using property taxes to fund transportation projects. This is a questionable use of property taxes — which are problematic and antiquated in themselves — and could create an incentive to increase appraisals of property in the zone. Further, the increment dedicated to paying the costs of transportation projects is diverted away from other pressing local needs.

OTHER CSHB 563 would not restrict toll projects from being funded through the OPPONENTS use of a transportation reinvestment zone. As such, the bill could create SAY: more opportunities for the state and local governments to push a policy of

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constructing new roads as toll projects. Toll roads are an unfair form of double taxation and place burdens on taxpayers to pay often unreasonable sums for the right to travel to necessary destinations. The bill should be amended specifically to exclude toll roads from eligible projects funded through reinvestment zones.

NOTES: The committee substitute would apply the provisions in the bill to previously designated transportation reinvestment zones.

The substitute also would modify language governing the role of TxDOT in approving transportation projects that local entities initiated through reinvestment zones. The substitute added a requirement that local entities reach an agreement with TxDOT over aspects of the project’s development and required projects on the state highway system to be reviewed and approved by the agency.

HJR 63 by Pickett, a related proposed constitutional amendment that would authorize the Legislature to permit a county to issue bonds or notes to finance the development of an unproductive area and to pledge increases in property taxes for debt service on bonds, was reported favorably, without amendment, by the Ways and Means Committee on March 28.

The 81st Legislature during the 2009 regular session considered HB 1801 by Pickett and SB 2378 by Nichols, which would have expanded the use of transportation reinvestment zones beyond pass-through financing arrangements. HB 1810 passed the House, but died in the Senate, while SB 2378 passed the Senate, but died in the House.

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HOUSE RESEARCH HB 612 ORGANIZATION bill analysis 3/30/2011 Hopson

SUBJECT: Penalty range for trustee failure to remit purchase price of timber

COMMITTEE: Natural Resources — favorable, without amendment

VOTE: 8 ayes — Ritter, T. King, Beck, Creighton, Hopson, Larson, D. Miller, Price

0 nays

3 absent — Keffer, Lucio, Martinez Fischer

WITNESSES: For — Ed Small, Texas Forestry Association; (Registered, but did not testify: Norman Garza, Texas Farm Bureau; Jim Reaves, Texas Nursery and Landscape Association)

Against — None

On — Kevin Pierce, Texas Forest Service

BACKGROUND: Under Natural Resources Code, sec. 151.105, failure by a trustee to pay the beneficiaries of a trust the purchase price for timber sold by the trustee is punishable as a state-jail felony (180 days to two years in a state jail and an optional fine of up to $10,000).

DIGEST: HB 612 would increase the penalty for failure by a trustee to pay the beneficiaries of a trust the purchase price for timber sold by the trustee based on the value of the timber sold, as follows:

a state-jail felony if the value of the timber was $500 to $19,999; a third-degree felony (two to 10 years in prison and an optional fine of up to $10,000) if the value of the timber was $20,000 to $99,999; a second-degree felony (two to 20 years in prison and an optional fine of up to $10,000) if the value of the timber was $100,000 to $199,999; A first-degree felony (life in prison or a sentence of five to 99 years and an optional fine of up to $10,000) if the value of the timber was at least $200,000.

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HB 612 would apply only to acts occurring on or after the bill’s September 1, 2011, effective date.

SUPPORTERS HB 612 would help landowners who have been victimized by theft. SAY: Sometimes a landowner signs a contract with a logger to cut trees, but the logger does not return with the revenue from the sale of the trees to the mill. The bill would address these instances of timber theft.

HB 612 would clarify the existing statute because the theft penalties in the Natural Resources Code do not reflect the Penal Code theft penalties. HB 612 would align the Natural Resources Code with the Penal Code. The bill also would enable prosecutors to seek a range of criminal charges based on the value of the timber sold.

OPPONENTS HB 612 would strain the already limited resources of the criminal justice SAY: system. Failure by a trustee to pay the beneficiaries of a trust the purchase price for high-dollar timber sold by the trustee could mean life in prison. This would increase pressure on the state correctional system due to longer probation terms or longer confinement in state jail or prison.

NOTES: The Senate companion bill, SB 583 by Nichols, was considered in a March 28 public hearing and left pending by the Senate Committee on Agriculture and Rural Affairs.

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HOUSE RESEARCH HB 613 ORGANIZATION bill analysis 3/30/2011 Hopson

SUBJECT: Penalties for harvesting standing timber without an owner’s permission

COMMITTEE: Natural Resources — favorable, without amendment

VOTE: 8 ayes — Ritter, T. King, Beck, Creighton, Hopson, Larson, D. Miller, Price

0 nays

3 absent — Keffer, Lucio, Martinez Fischer

WITNESSES: For — Ed Small, Texas Forestry Association; (Registered, but did not testify: Norman Garza, Texas Farm Bureau; Matt Phillips, The Nature Conservancy; Jim Reaves, Texas Nursery and Landscape Association)

Against — None

On — Kevin Pierce, Texas Forest Service

BACKGROUND: Under Natural Resources Code, sec. 151.051, a person who harvests standing timber without the owner’s permission is liable for damages equal to three times the market price of the timber. Payment of damages does not preclude criminal prosecution for selling timber without a bill of sale.

DIGEST: HB 613 would change the value of the damages payable for harvesting standing timber without the owner’s permission to the sum of the mill price of the timber and all reasonable expenses incurred by the owner as a direct result of the theft. Payment of damages would not preclude criminal prosecution for harvesting standing timber without the owner’s permission.

HB 613 also would create a criminal offense for harvesting standing timber without the owner’s permission. The offense would be based on the value of the timber, as follows:

state-jail felony (180 days to two years in a state jail and an optional fine of up to $10,000) if the value of the timber was $500 to $19,999;

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third-degree felony (two to 10 years in prison and an optional fine of up to $10,000) if the value of the timber was $20,000 to $99,999; second-degree felony (two to 20 years in prison and an optional fine of up to $10,000) if the value of the timber was $100,000 to $199,999; first-degree felony (life in prison or a sentence of five to 99 years and an optional fine of up to $10,000) if the value of the timber was at least $200,000.

HB 613 would apply only to acts occurring on or after the bill’s September 1, 2011, effective date.

SUPPORTERS HB 613 would allow landowners to seek adequate compensation of the SAY: expenses that directly result from the timber theft. Timber theft is often accompanied by property damage such as cut fences and damaged roads. Also, landowners often have to pay out of pocket for a forester to determine the market value of the theft.

HB 613 also would reduce confusion among prosecutors. By incorporating felony theft charges like those found in the Penal Code, HB 613 would clarify that harvesting standing timber without the owner’s permission would be a criminal offense.

OPPONENTS HB 612 would strain the already limited resources of the criminal justice SAY: system. Harvesting high-dollar standing timber without the owner’s permission could mean a life sentence. This would increase pressure on the state correctional system due to longer probation terms or longer confinement in state jail or prison.

NOTES: The Senate companion bill, SB 584 by Nichols, was considered in a March 28 public hearing and left pending by the Senate Agriculture and Rural Affairs Committee.

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HOUSE HB 716 RESEARCH S. Miller, Christian, Deshotel ORGANIZATION bill analysis 3/30/2011 (CSHB 716 by Deshotel)

SUBJECT: Allowing sale of seats on helicopter hunts for feral hogs and coyotes

COMMITTEE: Culture, Recreation, and Tourism — committee substitute recommended

VOTE: 7 ayes — Guillen, Elkins, Deshotel, T. King, Kuempel, Larson, Price

0 nays

2 absent — Dukes, T. Smith

WITNESSES: For — (Registered, but did not testify: Marida Favia del Core Borromeo, Exotic Wildlife Association; Seth Terry, Texas Farm Bureau)

Against — Patt Nordyke, Texas Federation of Animal Care Societies); (Registered, but did not testify: Nicole Paquette, The Humane Society of the United States)

On — Scott Vaca, Texas Parks & Wildlife Department, Law Enforcement

BACKGROUND: Under Parks and Wildlife Code, sec. 62.003, no person may hunt any wild bird or wild animal other than an alligator, frog, or turtle from any type of aircraft or airborne device, motor vehicle, powerboat, or sailboat, or from any other floating device, except for animals and birds not classified as migratory that are hunted within the boundaries of private property or upon private water.

Under current law, an aerial hunting company may obtain a permit from the Texas Parks and Wildlife Department (TPWD) to use an aircraft to manage wildlife or exotic animals. The permit to aerial hunt is specific to nuisance animals such as feral hogs, bobcats, coyotes, and exotics and can only be used for management purposes, not for sport. The fee for this type of permit is $210 per year. In turn, the aerial hunting company contracts with landowners, who file an authorization to manage exotic animals by aircraft with TPWD.

This permit is allowed under federal law, which provides that no person may hunt or harass any animal or bird from an aircraft unless they have a state permit. In addition, a landowner authorization must be signed by the landowner and the aerial permittee, and the aerial permittee must report

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the management activity to the United States Fish and Wildlife Department annually.

DIGEST: CSHB 716 would prohibit the Texas Parks and Wildlife Commission from adopting a proclamation or regulation that would ban a landowner from acting as a contractor or participating as a hunter or observer in a helicopter hunt for depredating feral hogs or coyotes.

The bill also would require the commission to amend its rules to comply with the legislation as soon as practical after CSHB 716 took effect on September 1, 2011.

SUPPORTERS CSHB 716 would allow a landowner to sell seats on a helicopter hunt for SAY: feral hogs or coyotes. Currently, a landowner can pay a company to hunt the hogs, but this can be costly for the landowner. The bill would allow landowners to defray the costs of controlling these nuisance animals and to help address the feral hog problem during a state budget crisis, when TPWD might be forced to limit its operations.

It is estimated that 1.5 million feral hogs are in Texas. Feral hogs are a prolific species that may have two litters per year, with up to 12 piglets in a litter. The problem of feral hogs has spread from rural areas to the suburbs and highways. Feral hogs devastate agriculture by trampling crops, tearing down fences, spreading diseases to livestock, and eating seeds and livestock feed. Direct damage from feral hogs has been estimated at $400 million annually. Sympathy for feral hogs is misplaced, because they are omnivores that prey on lambs, kid goats, newborn fawns, ground nesting birds, and endangered sea turtles.

The bill would pose no safety concerns because numerous state and federal regulations govern the safe operation of all aircraft and TPWD regulations ensure the proper conduct of aerial hunts. The helicopter companies and their pilots have additional financial and personal safety incentives to screen those selected to be gunners on a hunt. Interested participants must be able to demonstrate that they have the expertise to handle weaponry properly. Those posing any danger to the pilot or the helicopter would be grounded promptly.

According to the Texas Department of Agriculture, more than 75 percent of the state has suitable terrain and vegetative cover for aerial gunning operations. Aerial hunting remains the most effective method to control

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populations of feral hogs and coyotes, which move quickly and cannot be trapped easily. While TPWD is working on a promising program to poison feral hogs, budget limitations could stall that effort.

Concerns about the rotting carcasses of feral hogs killed by aerial hunts are unfounded. While efforts to remove the carcasses can be made, it remains best practice to leave feral hogs where they fall. Diseases from wild hogs do not pose a significant threat to humans, even though their maladies can be passed easily to livestock and wildlife.

TPWD helped revise CSHB 716 to ensure that the change would not legalize ―sport hunting‖ and would meet the United States Fish and Wildlife Department standards. In addition, lawmakers could amend the bill to repeal the sections of the Texas Administrative Code that punish anyone ―who pays, barters, or exchanges anything of value to participate as a gunner or observer‖ and prohibit the use of an aerial hunt permit for sport hunting. Any ambiguity could be addressed further in the rulemaking process by the Parks and Wildlife Commission. The commission is well aware of the need for effective control of nuisance species.

OPPONENTS Shooting guns from helicopters to hunt feral hogs would pose serious SAY: safety risks. Low-flying helicopters can encounter wind shears, power lines, trees, or other land formations while pursuing feral hogs, leading to possible air crashes. Pursuit with low-flying aircraft is inherently cruel and could lead to misplaced shots, wounded animals, and animals left to suffer and die under unacceptable conditions. A moving helicopter provides an unstable aiming platform. Since it is difficult to aim precisely and kill a running feral hog, the rate of wounded and crippled animals is likely to be significant, and wounded animals could cause even more damage. Furthermore, feral hogs tend to occupy low-lying areas and depressions where brush is dense, presenting a difficult target for aerial shooting.

Aside from the safety risks, hunting feral hogs from a helicopter would be a nuisance to nearby residential areas due to the noise from helicopters and gunfire. The practice also could raise issues with carcass removal. Some hogs weigh hundreds of pounds, making it difficult to dispose properly of the carcass. Since the meat cannot be used, the hunter does not have much incentive to retrieve the carcass. If the carcass is not handled properly, health and safety issues could arise, particularly if a carcass was left to decompose near a water source, causing contamination. Since the hunting typically occurs on private property, there are no clear regulations.

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Operating and maintaining a helicopter is expensive, so it is possible that this bill would not produce the financial bonanzas for landowners that many have predicted. Nonetheless, hunting from helicopters is an inhumane solution to the problem of feral hogs. Killing even feral hogs or coyotes from a helicopter should not be considered a sport, and selling seats on the craft would further blur the distinction between sport and slaughter.

OTHER As drafted, CSHB 716 would walk a very narrow line between predator OPPONENTS management and sport hunting and may not meet the U.S. Fish and SAY: Wildlife standards. In addition, the bill would not address the sections of the Texas Administrative Code that restrict sport hunting.

The provision allowing the sale of seats to hunt coyotes should be removed. State law already allows these animals to be hunted from the air, but there is no evidence that coyotes create the same level of destruction to crops and land as do feral hogs.

NOTES: The author is expected to offer a floor amendment that would amend the Texas Administrative Code provisions prohibiting the exchange of money or other valuable items to be a gunner or observer and to use an aerial permit for sports hunting.

The committee substitute differs from the original version of the bill by allowing landowners to contract with hunters to hunt coyotes as well as feral hogs from helicopters.

During the 2009 regular session, the House by 125-12 passed HB 836 by S. Miller, which would have allowed those with a proper permit to participate in helicopter hunts for feral hogs. The bill died in the Senate Natural Resources Committee after being re-referred from the Senate Agriculture and Rural Affairs Committee.

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HOUSE RESEARCH HB 1165 ORGANIZATION bill analysis 3/30/2011 Keffer, et al.

SUBJECT: Exempting certain electric cooperatives from gas utility regulations

COMMITTEE: State Affairs — favorable, without amendment

VOTE: 13 ayes — Cook, Menendez, Craddick, Frullo, Gallego, Geren, Harless, Hilderbran, Huberty, Oliveira, Smithee, Solomons, Turner

0 nays

WITNESSES: For — Mark Schwirtz, Golden Spread Electric Cooperative; (Registered, but did not testify: Eric Craven, Texas Electric Cooperatives)

Against — None

BACKGROUND: The Golden Spread Electric Cooperative provides electric service to 16 rural distribution cooperative members. Golden Spread’s member- systems serve more than 213,000 consumers in the Panhandle, , and regions of Texas.

Golden Spread currently is constructing the Golden Spread Panhandle Wind Ranch, a 78.2-megawatt wind generation project that is expected to generate up to 350,000 megawatt-hours of energy each year, the equivalent of the energy used by about 30,000 homes.

Golden Spread also is constructing Antelope Station, a 168-megawatt natural gas-fired generating station near Abernathy that will provide energy to serve the summer peak demand of approximately 67,000 homes. Considered a ―quick-start‖ generator because it can reach full output in less than 10 minutes, this unit will serve as backup generation for the Golden Spread Panhandle Wind Ranch.

Golden Spread owns the Fort Concho underground natural gas storage facility near San Angelo, which is designed to help quick-start generating units such as Antelope Station produce energy when wind energy generation subsides. The Fort Concho gas storage facility is the only known facility of its kind. It is expected to be fully operational by the end of 2011.

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DIGEST: HB 1165 would amend the Utilities Code and the Natural Resources Code to exclude from regulation as a gas utility an electric cooperative that sells electricity at wholesale and provides gas storage services for hire if the gas storage facility was predominantly operated to support the integration of renewable resources. In order to qualify for the exclusion, such a gas storage facility could not have a working gas capacity of more than five billion cubic feet.

The bill would take immediate effect if finally passed by a two-thirds record vote of the membership of each house. Otherwise, it would take effect September 1, 2011.

SUPPORTERS When electric cooperatives expand power plants to include wind energy, SAY: backup generation is necessary to supplement the intermittent nature of wind power. HB 1165 would enable the Golden Spread Electric Cooperative to use the Fort Concho gas storage facility to support its integration of wind energy without exposing the cooperative to the regulations of a true gas utility. State regulations make natural gas storage more expensive, more bureaucratic, and less economically feasible in an already strained economic climate. The Fort Concho facility still would be regulated for safety purposes, since the Railroad Commission must monitor all gas pipeline facilities, not just gas utilities, for safety.

Under current law, if an electric cooperative provides gas storage to any third party, even on a short-term basis, the cooperative is considered a gas utility. As a gas utility, the cooperative could be forced to offer storage services to all third parties, thereby reducing the available storage capacity needed to support the timely integration of wind energy. HB 1165 would allow Golden Spread to offset the expense of obtaining and maintaining a natural gas storage facility by allowing it to offer short-term gas storage services to other entities while not requiring it to offer such services to all third parties. The gas storage services could be short term and subject to termination if wind power dropped and the facility was needed for quick- start generation.

The bill would encourage energy diversity by applying the exemption only to facilities that operated predominantly to support the integration of renewable resources.

OPPONENTS No apparent opposition. SAY:

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NOTES: The Senate companion bill, SB 312 by Seliger, passed the Senate by 31-0 on March 17 and has been referred to the House State Affairs Committee.

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HOUSE RESEARCH HB 1404 ORGANIZATION bill analysis 3/30/2011 Sheffield

SUBJECT: Rules of conservatorship for child of deployed military parent

COMMITTEE: Judiciary and Civil Jurisprudence — favorable, without amendment

VOTE: 11 ayes — Jackson, Lewis, Bohac, Castro, S. Davis, Hartnett, Madden, Raymond, Scott, Thompson, Woolley

0 nays

WITNESSES: For — Heather King, Texas Family Law Foundation; (Registered, but did not testify: Steve Bresnen, Texas Family Law Foundation)

Against — None

BACKGROUND: Under current law, a parent ordered to military duty may file a request for a temporary order to designate an alternate conservator to care for his or her child during the parent’s service. A court may issue a temporary order designating an alternate conservator if it is in the best interests of the child.

DIGEST: HB 1404 would allow a parent to file for a temporary order designating an alternate conservator for his or her child without having to show a material and substantial change of circumstances if military deployment, military mobilization, or temporary military duty was the cause of the request.

The bill would specify that if the designated alternate conservator was a nonparent, then that person would have the rights and duties of a nonparent appointed as sole managing conservator, but the court could not require that person to pay child support.

The bill would repeal Family Code, sec. 153.706, which states that a temporary order may cause a change of circumstances that could justify modification of a person’s child support obligations.

HB 1404 would take effect on September 1, 2011. It would apply to a motion for a temporary order that was pending in court on the effective date or filed on or after that date.

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SUPPORTERS HB 1404 would save parents the time and expense of proving a material SAY: and substantial change of circumstances when military deployment made it necessary to designate an alternate conservator. Deployment often requires a service member to make quick child care arrangements, sometimes with a new spouse or family member to minimize disruption to the child’s schedule. The bill would remove an unnecessary step in the process of obtaining a temporary order, ensuring that the service member was not penalized because of a deployment.

A temporary order is a mechanism for preserving the original custody arrangement. The ultimate decision of whether to grant a temporary order would remain with the judge and would be based on the best interests of the child. HB 1404 is a narrowly drawn bill and would not affect the determination of a material and substantial change of circumstances in situations other than temporary orders.

The bill would prevent a parent from avoiding child support if the parent was appointed as a designated conservator, but it also would clarify that a nonparent appointed as a designated conservator would not be required to pay child support.

OPPONENTS Since it would remove a step in the process of obtaining a temporary SAY: order, this bill possibly could allow a deployment to be used against a service member to temporarily change a custody arrangement or child support obligation arrangement.

The Senate companion bill, SB 818 by Harris, has been referred to the NOTES: Senate Jurisprudence Committee.

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