HOUSE JOURNAL

SEVENTY-NINTH LEGISLATURE, REGULAR SESSION

PROCEEDINGS

SEVENTY-FIFTH DAY — MONDAY, MAY 23, 2005

The house met at 10 a.m. and was called to order by the speaker.

The roll of the house was called and a quorum was announced present (Recordi761).

Present — Mr. Speaker; Allen, A.; Allen, R.; Alonzo; Anchia; Anderson; Bailey; Baxter; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Casteel; Chavez; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Escobar; Farabee; Farrar; Flores; Flynn; Frost; Gallego; Gattis; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Herrero; Hill; Hochberg; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jackson; Jones, J.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Kuempel; Laney; Laubenberg; Leibowitz; Luna; Madden; Martinez; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Merritt; Miller; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega, M.; Oliveira; Orr; Otto; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Strama; Straus; Swinford; Talton; Taylor; Thompson; Truitt; Turner; Uresti; Van Arsdale; Veasey; Villarreal; Vo; West; Wong; Woolley; Zedler.

Absent, Excused — Hodge.

Absent — Castro; Driver; Hilderbran; Jones, D.; Krusee; Olivo; Paxton.

The invocation was offered by Emeritus Zacharias, pastor, Northpark Presbyterian Church, Dallas, as follows:

Almighty God, our Father, humbly we come into your presence. We are thankful that we live in a free country. We are grateful that we have a government of the people, by the people, and for the people. We are thankful for the privilege of being legislators in this great state. Make us mindful of our responsibility that comes with this privilege.

As our time is drawing to a close, let us work diligently to complete the needed and important legislation. We pray for your guidance and your wisdom that we will make decisions that will strengthen our state and provide a future for our state and its people. Let us work together with unity and purpose so that when the legislature adjourns it may be said of each legislator, "Well done, good and faithful servant." Hear our prayer, O Lord. Amen.

The speaker recognized Representative Hill who led the house in the pledges of allegiance to the United States and Texas flags.

LEAVE OF ABSENCE GRANTED

The following member was granted leave of absence for today and the remainder of the week because of illness in the family:

Hodge on motion of Hochberg.

REGULAR ORDER OF BUSINESS SUSPENDED

On motion of Representative Bonnen and by unanimous consent, the reading and referral of bills was postponed until just prior to adjournment.

CAPITOL PHYSICIAN

The speaker recognized Representative Woolley who presented Dr. Laura Ann Longo of Houston as the "Doctor for the Day."

The house welcomed Dr. Longo and thanked her for her participation in the Physician of the Day Program sponsored by the Texas Academy of Family Physicians.

BILLS AND RESOLUTIONS SIGNED BY THE SPEAKER

Notice was given at this time that the speaker had signed bills and resolutions in the presence of the house (see the addendum to the daily journal, Signed by the Speaker, House List No. 49 and Senate List No. 26).

(Krusee and Hilderbran now present)

(Krusee in the chair)

HCR 211 - ADOPTED
(by Jackson)

Representative Jackson moved to suspend all necessary rules to take up and consider at this time HCRi211.

The motion prevailed.

The following resolution was laid before the house:

HCR 211, Congratulating Addison police officer Brad Freis on his selection to carry the torch for the 2005 Special Olympics World Winter Games in Japan.

HCR 211 was read and was adopted.

(Castro now present)

INTRODUCTION OF GUESTS

The chair recognized Representative Jackson who introduced Brad Freis and his family.

HR 1485 - READ
(by Hilderbran)

The chair laid out and had read the following previously adopted resolution:

3962 79th LEGISLATURE — REGULAR SESSION

HR 1485,iHonoring Harley Steele of San Antonio for her perseverance in her efforts to attend the presidential inauguration in Washington, D.C., in January 2005.

INTRODUCTION OF GUEST

The chair recognized Representative Hilderbran who introduced Harley Steele.

HR 1745 - ADOPTED
(by Hill)

Representative Edwards moved to suspend all necessary rules to take up and consider at this time HRi1745.

The motion prevailed.

The following resolution was laid before the house:

HR 1745, Honoring Eamon Kennedy of Arapaho Elementary School in Richardson for being selected the Adapted Physical Education Teacher of the Year by the Texas Association for Health, Physical Education, Recreation, and Dance.

HR 1745 was adopted.

HR 1940 - ADOPTED
(by Gallego)

Representative Gallego moved to suspend all necessary rules to take up and consider at this time HRi1940.

The motion prevailed.

The following resolution was laid before the house:

HR 1940, In memory of Jo Ellen Allbright Vick of Alpine.

(Isett in the chair)

HR 1940 was read and was unanimously adopted by a rising vote.

On motion of Representative Castro, the names of all the members of the house were added to HRi1940 as signers thereof.

(D. Jones now present)

INTRODUCTION OF GUESTS

The chair recognized Representative Gallego who introduced the family of Jo Ellen Allbright Vick.

HR 1848 - ADOPTED
(by Guillen)

Representative Guillen moved to suspend all necessary rules to take up and consider at this time HRi1848.

The motion prevailed.

The following resolution was laid before the house:

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HR 1848, Honoring Leonel "Muy" Garza of Freer as the founder of the Muy Grande Day contest on its 40th anniversary.

HR 1848 was read and was adopted.

On motion of Representative Raymond, the names of all the members of the house were added to HRi1848 as signers thereof.

INTRODUCTION OF GUESTS

The chair recognized Representative Guillen who introduced Leonel "Muy" Garza and his family.

(Driver now present)

UNFINISHED BUSINESS

The following bill was laid before the house as unfinished business:

CSSB 1863 ON SECOND READING
(Pitts - House Sponsor)

CSSB 1863, A bill to be entitled An Act relating to certain fiscal matters affecting governmental entities.

CSSB 1863 was read second time on May 22 and 33 amendments were offered and disposed of before that day's adjournment.

Amendment No. 34

Representative Hartnett offered the following amendment to CSSBi1863:

Amend Amend CSSB 1863 (House Committee Printing) by adding the following appropriately numbered SECTIONS to ARTICLE 11 of the bill and renumbering subsequent SECTIONS of that article accordingly:

SECTION . Subchapter H, Chapter 74, Property Code, is amended by adding Section 74.7085 to read as follows:

Sec. 74.7085. HEARING. (a) If, after an examination of records under Section 74.702, the comptroller determines that a person holds unclaimed property that should have been delivered to the comptroller as provided by this chapter, the person may petition the comptroller for a hearing on that determination and on the imposition of any interest or penalty resulting from that determination.

(b) A person must file a petition for a hearing with the comptroller under this section not later than the 30th day after the date the determination is made. If a petition for a hearing is not filed before the expiration of the period provided by this subsection, the determination is final on the expiration of that period.

(c) At the time a person files a petition for a hearing under Subsection (b), the person must pay to the comptroller a hearing fee in the amount of $50, which shall be used by the comptroller for the purpose of administering hearings under this section.

SECTION . Subchapter A, Chapter 74, Property Code, is amended by adding Section 74.002 to read as follows:

3964 79th LEGISLATURE — REGULAR SESSION

Sec. 74.002. SINGLE BUSINESS ENTERPRISE DOCTRINE INAPPLICABLE. The single business enterprise doctrine does not apply to this chapter.

SECTION . The change in law made by Section 74.7085, Property Code, as added by this article, applies only to a determination by the comptroller made on or after the effective date of this Act. A determination by the comptroller made before the effective date of this Act is governed by the law in effect on the date the determination was made, and the former law is continued in effect for that purpose.

SECTION . Section 74.002, Property Code, as added by this article, is intended only to clarify existing law with respect to Chapter 74, Property Code.

Amendment No. 34 was adopted.

Amendment No. 35

Representative Grusendorf offered the following amendment to CSSBi1863:

Amend CSSB 1863 by adding a new, appropriately numbered ARTICLE to read as follows:

ARTICLE __.

TRANSFER OF DRIVER EDUCATION PROGRAMS FROM THE TEXAS

EDUCATION AGENCY TO THE

TEXAS DEPARTMENT OF LICENSING AND REGULATION

SECTION ___.01. Section 1001.001, Education Code, is amended by amending Subdivisions (2), (3), (4), and (5) and adding Subdivision (13-a) to read as follows:

(2)ii"Approved driving safety course" means a driving

safety course approved by the department [commissioner].

(3)ii"Commission" ["Commissioner"] means the Texas

Commission of Licensing and Regulation [commissioner of education].

(4)ii"Course provider" means an enterprise that:

(A)iimaintains a place of business or solicits business in this state;

(B)iiis operated by an individual, association, partnership, or corporation; and

(C)iihas received an approval for a driving safety course from the department [commissioner] or has been designated by a person who has received that approval to conduct business and represent the person in this state.

(5)ii"Department" means the Texas Department of

Licensing and Regulation [Public Safety].

(13-a) "Executive director" means the executive director of the department.

SECTION ___.02. Section 1001.002(c), Education Code, is amended to read as follows:

(c)iiA driver education course is exempt from this chapter, other than Section 1001.055, if the course is:

(1)iiconducted by a vocational driver training school

operated to train or prepare a person for a field of endeavor in a business, trade, technical, or industrial occupation;

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(2)iiconducted by a school or training program that offers only instruction of purely avocational or recreational subjects as determined by the department [commissioner];

(3)iisponsored by an employer to train its own

employees without charging tuition;

(4)iisponsored by a recognized trade, business, or

professional organization with a closed membership to instruct the members of the organization; or

(5)iiconducted by a school regulated and approved under another law of this state.

SECTION ___.03. Sections 1001.003 and 1001.004, Education Code, are amended to read as follows:

Sec.i1001.003.iiLEGISLATIVE INTENT REGARDING SMALL

BUSINESSES. It is the intent of the legislature that commission [agency] rules that affect driver training schools that qualify as small businesses be adopted and administered so as to have the least possible adverse economic effect on the schools.

Sec.i1001.004.iiCOST OF ADMINISTERING CHAPTER. The cost of administering this chapter shall be included in the state budget allowance for the department [agency].

SECTION ___.04. Sections 1001.051 and 1001.052, Education Code, are amended to read as follows:

Sec.i1001.051.iiJURISDICTION OVER SCHOOLS. The department [agency] has jurisdiction over and control of driver training schools regulated under this chapter.

Sec.i1001.052.iiRULES. The commission [agency] shall adopt [and administer] comprehensive rules governing driving safety courses, including rules to ensure the integrity of approved driving safety courses and enhance program quality.

SECTION ___.05. The heading to Section 1001.053, Education Code, is amended to read as follows:

Sec.i1001.053.iiPOWERS AND DUTIES OF DEPARTMENT

[COMMISSIONER].

SECTION ___.06. Section 1001.053(a), Education Code, is amended to read as follows:

(a)iiThe department [commissioner] shall:

(1)iiadminister [the policies of] this chapter;

(2)iienforce minimum standards for driver training

schools under this chapter; and

(3)ii[adopt and] enforce rules adopted by the commission necessary to administer this chapter[; and

[(4)iivisit a driver training school or course provider and reexamine the school or course provider for compliance with this chapter].

SECTION ___.07. The heading to Section 1001.054, Education Code, is amended to read as follows:

Sec.i1001.054.iiRULES RESTRICTING ADVERTISING [OR

3966 79th LEGISLATURE — REGULAR SESSION

[COMPETITIVE BIDDING].

SECTION ___.08. Section 1001.054(c), Education Code, is amended to read as follows:

(c)iiThe commission [commissioner] by rule may restrict advertising by a branch location of a driver training school so that the location adequately identifies the primary location of the school in a solicitation.

SECTION ___.09. Section 1001.055, Education Code, is amended to read as follows:

Sec.i1001.055.iiDRIVER EDUCATION CERTIFICATES. (a) The department [agency] shall print and supply to each licensed or exempt driver education school driver education certificates to be used for certifying completion of an approved driver education course to satisfy the requirements of Section 521.204(a)(2), Transportation Code. The certificates must be numbered serially.

(b)iiThe commission [agency] by rule shall provide for the design and distribution of the certificates in a manner that, to the greatest extent possible, prevents the unauthorized reproduction or misuse of the certificates.

(c)iiThe department [agency] may charge a fee of not more than $4 for each certificate.

SECTION ___.10. Sections 1001.056(b), (c), (d), (e), (f) and (g), Education Code, are amended and Subsections (b-1), (c-1) and (h) are added to read as follows:

(b)iiThe department [agency] shall provide [print and supply to] each licensed course provider with course completion certificate numbers to enable the provider to print and issue department-approved uniform certificates of course completion.

(b-1) Certificate numbering under Subsection (b) [The certificates] must be serial [numbered serially].

(c)iiThe commission [agency] by rule shall provide for the design and distribution of the certificates in a manner that, to the greatest extent possible, prevents the unauthorized production or misuse of the certificates.

(c-1) A course provider shall provide for the printing and issuance of original and duplicate certificates in a manner that, to the greatest extent possible, prevents the unauthorized production or the misuse of the certificates.

(d)iiA certificate under this section must:

(1)iibe in a form required by the department [agency]; and

(2)iiinclude an identifying number by which the

department [agency], a court, or the Department of Public Safety [department] may verify its authenticity with the course provider.

(e)iiThe department [agency] may charge a fee of not more than $4 for each course completion certificate number. A course provider that supplies a certificate for an operator shall collect from the [charge an] operator a fee equal to the amount of the fee paid to the department [agency] for the [a] certificate number.

(f)iiA course provider license entitles a course provider to purchase certificate numbers [certificates] for only one approved driving safety course.

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(g)iiA course provider [The agency] shall issue a duplicate certificate by United States mail or through a commercial delivery service [certificates]. The commission [commissioner] by rule shall determine the amount of the fee collected by the course provider for issuance of a duplicate certificate under this subsection.

(h)iiIf a duplicate certificate issued by a course provider contains information that is different from the original certificate, the course provider shall include on the duplicate certificate, in addition to the new information, the applicable information from the original certificate with the notation "changed to" indicating how the original information was changed.

SECTION ___.11. Section 1001.057, Education Code, is amended to read as follows:

Sec.i1001.057.iiELECTRONIC TRANSMISSION OF DRIVING SAFETY COURSE INFORMATION. The department [agency] shall investigate options to develop and implement procedures to electronically transmit information relating to driving safety courses to municipal and justice courts.

SECTION ___.12. Subchapter B, Chapter 1001, Education Code, is amended by adding Section 1001.058 to read as follows:

Sec.i1001.058.iiDESIGNATION OF PERSON TO ADMINISTER CHAPTER. The executive director may designate a person knowledgeable in the administration of regulating driver training schools to administer this chapter for the department.

SECTION ___.13. Sections 1001.101 and 1001.102, Education Code, are amended to read as follows:

Sec.i1001.101.iiDRIVER EDUCATION COURSE CURRICULUM AND TEXTBOOKS. The commission [commissioner] by rule shall establish the curriculum and designate the textbooks to be used in a driver education course.

Sec.i1001.102.iiALCOHOL AWARENESS INFORMATION. (a) The commission [agency] by rule shall require that information relating to alcohol awareness and the effect of alcohol on the effective operation of a motor vehicle be included in the curriculum of any driver education course or driving safety course.

(b)iiIn developing rules under this section, the commission [agency] shall consult with the Department of Public Safety [department].

SECTION ___.14. Sections 1001.103(b), (d), and (e), Education Code, are amended to read as follows:

(b)iiThe department [agency] shall develop standards for a separate school certification and approve curricula for drug and alcohol driving awareness programs that include one or more courses. Except as provided by commission [agency] rule, a program must be offered in the same manner as a driving safety course.

(d)iiIn accordance with Section 461.013(b), Health and Safety Code, the department [agency] and the Texas Commission on Alcohol and Drug Abuse shall enter into a memorandum of understanding for the interagency approval of the required curricula.

3968 79th LEGISLATURE — REGULAR SESSION

(e)iiThe commission [Notwithstanding Section 1001.056, Subchapter D, and Sections 1001.213 and 1001.303, the commissioner] may establish fees in connection with the programs under this section. The fees must be in amounts reasonable and necessary to administer the department's [agency's] duties under this section.

SECTION ___.15. Sections 1001.104 and 1001.105, Education Code, are amended to read as follows:

Sec.i1001.104.iiHOSPITAL AND REHABILITATION FACILITIES. (a) The department [agency] shall enter into a memorandum of understanding with the Texas Department of Aging and Disability Services [Rehabilitation Commission] and the Department of Public Safety [department] for the interagency development of curricula and licensing criteria for hospital and rehabilitation facilities that teach driver education.

(b)iiThe department [agency] shall administer comprehensive rules governing driver education courses adopted by mutual agreement among the commission [agency], the Texas Department of Aging and Disability Services [Rehabilitation Commission], and the Department of Public Safety [department].

Sec.i1001.105.iiTEXAS DEPARTMENT OF INSURANCE. The

commission [agency] shall enter into a memorandum of understanding with the Texas Department of Insurance for the interagency development of a curriculum for driving safety courses.

SECTION ___.16. Sections 1001.106(b), (c), and (d), Education Code, are amended to read as follows:

(b)iiThe commission [commissioner] by rule shall provide minimum standards of curriculum relating to operation of vehicles at railroad and highway grade crossings.

(c)iiSubchapter F, Chapter 51, Occupations Code, Section 51.353, Occupations Code, and Section [Sections 1001.454,] 1001.456 of this code[, and 1001.553] do not apply to a violation of this section or a rule adopted under this section.

(d)iiSection 51.352, Occupations Code, and Sections

[1001.455(a)(6),] 1001.501[, 1001.551, 1001.552,] and 1001.554 of this code do not apply to a violation of this section.

SECTION ___.17. Section 1001.107, Education Code, is amended to read as follows:

Sec.i1001.107.iiINFORMATION RELATING TO LITTER PREVENTION. (a) The commission [commissioner] by rule shall require that information relating to litter prevention be included in the curriculum of each driver education and driving safety course.

(b)iiIn developing rules under this section, the commission [commissioner] shall consult the Department of Public Safety [department].

SECTION ___.18. Sections 1001.108(a) and (c), Education Code, are amended to read as follows:

(a)iiThe commission [commissioner] by rule shall require that information relating to anatomical gifts be included in the curriculum of each driver education course and driving safety course.

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(c)iiIn developing rules under this section, the commission [commissioner] shall consult with the Department of Public Safety [department] and the [Texas] Department of State Health Services.

SECTION ___.19. Section 1001.151, Education Code, is amended to read as follows:

Sec.i1001.151.iiAPPLICATION, LICENSE, AND REGISTRATION FEES. (a) The commission [commissioner] shall establish [collect] application, license, and registration fees. The fees must be in amounts sufficient to cover administrative costs and are nonrefundable. The department shall collect the application, license, and registration fees.

(b)iiThe commission shall establish a fee for:

(1) an initial driver education school license and [is $1,000 plus $850] for each branch location; [.]

(2) [(c) The fee for] an initial driving safety

school license; [is an appropriate amount established by the commissioner not to exceed $200.]

(3) [(d) The fee for] an initial course provider

license [is an appropriate amount established by the commissioner not to exceed $2,000], except that the commission [agency] may waive the fee if revenue received from the course provider is sufficient to cover the cost of licensing the course provider; [.]

(4)iithe [(e) The] annual renewal [fee] for a course

provider, driving safety school, driver education school, or branch location [is an appropriate amount established by the commissioner not to exceed $200], except that the commission [agency] may waive the fee if revenue generated by the issuance of [uniform certificates]of course completion certificate numbers and driver education certificates is sufficient to cover the cost of administering this chapter and Article 45.0511, Code of Criminal Procedure; [.]

(5) [(f) The fee for] a change of address of[:

[(1)] a driver education school, [is $180; and

[(2)] a driving safety school, or course provider; [is $50.]

(6) [(g) The fee for] a change of name of:

(A) [(1)] a driver education school or course provider or an owner of a driver education school or course provider [is $100]; or [and]

(B) [(2)] a driving safety school or owner of a

driving safety school; [is $50.]

(7) [(h) The application fee for] each additional

driver education or driving safety course at a driver training school; [is $25.]

(8)iian [(i) The] application of a [fee for:

[(1)iieach] director, [is $30; and

[(2)iieach] assistant director, or administrative

staff member; and [is $15.]

(9)iian [(j) Each] application for approval of a

driving safety course that has not been evaluated by the department [commissioner must be accompanied by a nonrefundable fee of $9,000];

3970 79th LEGISLATURE — REGULAR SESSION

(10)iian application for approval to teach an approved driving safety course by an alternative method.

(c) [(k)] An application for an original driver education or driving safety instructor license must be accompanied by a processing fee [of $50] and an annual license fee [of $25], except that the department [commissioner] may not collect the processing fee from an applicant for a driver education instructor license who

is currently teaching a driver education course in a public school in this state.

(d) [(l)] The commission [commissioner] shall establish the amount of the fee for a duplicate license.

SECTION ___.20. Section 1001.153, Education Code, is amended to read as follows:

Sec.i1001.153.iiCOMPLAINT INVESTIGATION FEE. (a) The

commission [commissioner] shall establish the amount of the fee to investigate a driver training school or course provider to resolve a complaint against the school or course provider.

(b)iiThe fee may be charged only if:

(1)iithe complaint could not have been resolved solely by telephone or in writing;

(2)iia representative of the department [agency] visited the school or course provider as a part of the complaint resolution process; and

(3)iithe school or course provider was found to be at

fault.

SECTION ___.21. Section 1001.202(b), Education Code, is amended to read as follows:

(b)iiA driving safety school may use multiple classroom locations to teach a driving safety course if each location:

(1)iiis approved by the parent school and the department [agency];

(2)iihas the same name as the parent school; and

(3)iihas the same ownership as the parent school.

SECTION ___.22. Sections 1001.203, 1001.204, 1001.205, and 1001.206, Education Code, are amended to read as follows:

Sec.i1001.203.iiAPPLICATION. To operate or do business in this state, a driver training school must apply to the department [commissioner] for the appropriate license. The application must:

(1)iibe in writing;

(2)iibe in the form prescribed by the department

[commissioner];

(3)iiinclude all required information; and

(4)iibe verified.

Sec.i1001.204.iiREQUIREMENTS FOR DRIVER EDUCATION SCHOOL LICENSE. The department [commissioner] shall approve an application for a driver education school license if, on investigation of the premises of the school, it is determined that the school:

(1)iihas courses, curricula, and instruction of a

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quality, content, and length that reasonably and adequately achieve the stated objective for which the courses, curricula, and instruction are offered;

(2)iihas adequate space, equipment, instructional

material, and instructors to provide training of good quality in the classroom and behind the wheel;

(3)iihas directors, instructors, and administrators

who have adequate educational qualifications and experience;

(4)iiprovides to each student before enrollment:

(A)iia copy of:

(i)iithe refund policy;

(ii)iithe schedule of tuition, fees, and

other charges; and

(iii)iithe regulations relating to absence,

grading policy, and rules of operation and conduct; and

(B)iithe department's name, mailing address, [and] telephone number, and Internet website address [of the

[agency] for the purpose of directing complaints to the department [agency];

(5)iimaintains adequate records as prescribed by the

department [commissioner] to show attendance and progress or grades and enforces satisfactory standards relating to attendance, progress, and conduct;

(6)iion completion of training, issues each student a

certificate indicating the course name and satisfactory completion;

(7)iicomplies with all county, municipal, state, and

federal regulations, including fire, building, and sanitation codes and assumed name registration;

(8)iiis financially sound and capable of fulfilling its commitments for training;

(9)iihas administrators, directors, owners, and

instructors who are of good reputation and character;

(10)iimaintains and publishes as part of its student

enrollment contract the proper policy for the refund of the unused portion of tuition, fees, and other charges if a student fails to take the course or withdraws or is discontinued from the school at any time before completion;

(11)iidoes not use erroneous or misleading advertising, either by actual statement, omission, or intimation, as determined by the department [commissioner];

(12)iidoes not use a name similar to the name of another existing school or tax-supported educational institution in this state, unless specifically approved in writing by the executive director [commissioner];

(13)iisubmits to the department [agency] for approval

the applicable course hour lengths and curriculum content for each course offered by the school;

(14)iidoes not owe an administrative penalty for a

violation of [under] this chapter; and

(15)iimeets any additional criteria required by the

department [agency].

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Sec.i1001.205.iiREQUIREMENTS FOR DRIVING SAFETY SCHOOL LICENSE. The department [commissioner] shall approve an application for a driving safety school license if on investigation the department [agency] determines that the school:

(1)iihas driving safety courses, curricula, and

instruction of a quality, content, and length that reasonably and adequately achieve the stated objective for which the course, curricula, and instruction are developed by the course provider;

(2)iihas adequate space, equipment, instructional

material, and instructors to provide training of good quality;

(3)iihas instructors and administrators who have

adequate educational qualifications and experience;

(4)iimaintains adequate records as prescribed by the

department [commissioner] to show attendance and progress or grades and enforces satisfactory standards relating to attendance, progress, and conduct;

(5)iicomplies with all county, municipal, state, and

federal laws, including fire, building, and sanitation codes and assumed name registration;

(6)iihas administrators, owners, and instructors who

are of good reputation and character;

(7)iidoes not use erroneous or misleading advertising, either by actual statement, omission, or intimation, as determined by the department [commissioner];

(8)iidoes not use a name similar to the name of another existing school or tax-supported educational establishment in this state, unless specifically approved in writing by the executive director [commissioner];

(9)iimaintains and uses the approved contract and

policies developed by the course provider;

(10)iidoes not owe an administrative penalty for a

violation of [under] this chapter;

(11)iiwill not provide a driving safety course to a

person for less than $32 [$25]; and

(12)iimeets additional criteria required by the

department [commissioner].

Sec.i1001.206.iiREQUIREMENTS FOR COURSE PROVIDER LICENSE. The department [commissioner] shall approve an application for a course provider license if on investigation the department [agency] determines that:

(1)iithe course provider has an approved course that at least one licensed driving safety school is willing to offer;

(2)iithe course provider has adequate educational

qualifications and experience;

(3)iithe course provider will:

(A)iidevelop and provide to each driving safety

school that offers the approved course a copy of:

(i)iithe refund policy; and

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(ii)iithe regulations relating to absence, grading policy, and rules of operation and conduct; and

(B)iiprovide to the driving safety school the department's name, mailing address, [and] telephone number, and Internet website address [of the agency] for the purpose of directing complaints to the department [agency];

(4)iia copy of the information provided to each driving safety school under Subdivision (3) will be provided to each student by the school before enrollment;

(5)iinot later than the 15th working day after the date the person successfully completes the course, the course provider will mail a uniform certificate of course completion to the person indicating the course name and successful completion;

(6)iithe course provider maintains adequate records as prescribed by the department [commissioner] to show attendance and progress or grades and enforces satisfactory standards relating to attendance, progress, and conduct;

(7)iithe course provider complies with all county,

municipal, state, and federal laws, including assumed name

registration and other applicable requirements;

(8)iithe course provider is financially sound and

capable of fulfilling its commitments for training;

(9)iithe course provider is of good reputation and

character;

(10)iithe course provider maintains and publishes as a part of its student enrollment contract the proper policy for the refund of the unused portion of tuition, fees, and other charges if a student fails to take the course or withdraws or is discontinued from the school at any time before completion;

(11)iithe course provider does not use erroneous or

misleading advertising, either by actual statement, omission, or intimation, as determined by the department [commissioner];

(12)iithe course provider does not use a name similar to the name of another existing school or tax-supported educational institution in this state, unless specifically approved in writing by the executive director [commissioner];

(13)iithe course provider does not owe an administrative penalty for a violation of [under] this chapter; and

(14)iithe course provider meets additional criteria

required by the department [commissioner].

SECTION ___.23. Sections 1001.207(a) and (b), Education Code, are amended to read as follows:

(a)iiBefore a driver education school may be issued a

license, the school must file a corporate surety bond with the department [commissioner] in the amount of:

(1)ii$10,000 for the primary location of the school;

and

(2)ii$5,000 for each branch location.

(b)iiA bond issued under Subsection (a) must be:

(1)iiissued in a form approved by the department [commissioner];

3974 79th LEGISLATURE — REGULAR SESSION

(2)iiissued by a company authorized to do business in

this state;

(3)iipayable to the state to be used only for payment of a refund due to a student or potential student;

(4)iiconditioned on the compliance of the school and

its officers, agents, and employees with this chapter and rules adopted under this chapter; and

(5)iiissued for a period corresponding to the term of

the license.

SECTION ___.24. Section 1001.209(b), Education Code, is amended to read as follows:

Section 1001.209(b), Education Code, is amended

to read as follows:

(b)iiA bond issued under Subsection (a) must be:

(1)iiissued by a company authorized to do business in this state;

(2)iipayable to the state to be used:

(A)iifor payment of a refund due a student of the course provider's approved course;

(B)iito cover the payment of unpaid fees or

penalties assessed by the department [agency]; or

(C)iito recover any [the] cost associated with

providing [of uniform certificates of] course completion

certificate numbers, including the cancellation of certificate numbers [the agency demands be returned or any cost associated with the certificates];

(3)iiconditioned on the compliance of the course provider and its officers, agents, and employees with this chapter and rules adopted under this chapter; and

(4)iiissued for a period corresponding to the term of the license.

SECTION ___.25. Section 1001.210, Education Code, is amended to read as follows:

Sec.i1001.210.iiALTERNATE FORM OF SECURITY. Instead of the bond required by Section 1001.207 or 1001.209, a driver education school or course provider may provide another form of security that is:

(1) [(A)] approved by the department [commissioner];

and

(2) [(B)] in the amount required for a comparable bond under Section 1001.207 or 1001.209.

SECTION ___.26. Sections 1001.211(a) and (b), Education Code, are amended to read as follows:

(a)iiThe department [commissioner] shall issue a license to an applicant for a license under this subchapter if:

(1)iithe application is submitted in accordance with

this subchapter; and

(2)iithe applicant meets the requirements of this

chapter.

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(b)iiA license must be in a form determined by the department [commissioner] and must show in a clear and conspicuous manner:

(1)iithe date of issuance, effective date, and term of the license;

(2)iithe name and address of the driver training school or course provider;

(3)iithe authority for and conditions of approval;

(4)iithe executive director's [commissioner's]

signature; and

(5)iiany other fair and reasonable representation that is consistent with this chapter and that the department [commissioner] considers necessary.

SECTION ___.27. Section 1001.212, Education Code, is amended to read as follows:

Sec.i1001.212.iiNOTICE OF DENIAL OF LICENSE. The department [commissioner] shall provide a person whose application for a license under this subchapter is denied a written statement of the reasons for the denial.

SECTION ___.28. Sections 1001.213(c) and (d), Education Code, are amended to read as follows:

(c)iiThe commission may establish [Instead of the] fees [required by Section 1001.151, the fee] for a new driver education school or course provider license under Subsection (b) and [is $500, plus $200] for each branch location that are different from the amounts established under Section 1001.151[,] if:

(1)iithe new owner is substantially similar to the

previous owner; and

(2)iithere is no significant change in the management

or control of the driver education school or course provider.

(d)iiThe department [commissioner] is not required to

reinspect a school or a branch location after a change of ownership.

SECTION ___.29. Section 1001.214, Education Code, is amended to read as follows:

Sec.i1001.214.iiDUPLICATE LICENSE. A duplicate license may be issued to a driver training school or course provider if:

(1)iithe original license is lost or destroyed; and

(2)iian affidavit of that fact is filed with the

department [agency].

SECTION ___.30. Sections 1001.251, 1001.252, and 1001.253, Education Code, are amended to read as follows:

Sec.i1001.251.iiLICENSE REQUIRED FOR INSTRUCTOR. (a) A person may not teach or provide driver education, either as an individual or in a driver education school, or conduct any phase of driver education, unless the person holds a driver education instructor license issued by the department [agency].

(b)iiA person may not teach or provide driving safety

training, either as an individual or in a driving safety school, or conduct any phase of driving safety education, unless the person holds a driving safety instructor license issued by the department [agency]. This subsection does not apply to an instructor of a driving safety course that does not provide a uniform certificate of course completion to its graduates.

3976 79th LEGISLATURE — REGULAR SESSION

Sec.i1001.252.iiSIGNATURE AND SEAL ON LICENSE REQUIRED. A license under this subchapter must be signed by the executive director [commissioner].

Sec.i1001.253.iiDRIVER EDUCATION INSTRUCTOR TRAINING. (a) The department [commissioner] shall establish standards for certification of professional and paraprofessional personnel who conduct driver education programs in driver education schools.

(b)iiA driver education instructor license authorizing a person to teach or provide behind-the-wheel training may not be issued unless the person has successfully completed six semester hours of driver and traffic safety education or a program of study in driver education approved by the department [commissioner] from an approved driver education school.

(c)iiA person who holds a driver education instructor license authorizing behind-the-wheel training may not be approved to [assist a classroom instructor] provide instruction in the classroom phase of driver education, under the certification of a classroom instructor, unless the person has successfully completed the three additional semester hours of training required for a classroom instructor or a program of study in driver education approved by the department [commissioner].

(d)iiExcept as provided by Section 1001.254, a driver

education instructor license authorizing a person to teach or provide classroom training may not be issued unless the person:

(1)iihas completed nine semester hours of driver and

traffic safety education or a program of study in driver education approved by the department [commissioner] from an approved driver education school; and

(2)iiholds a teaching certificate and any additional

certification required to teach driver education.

(e)iiA driver education instructor who has completed the educational requirements prescribed by Subsection (d)(1) may not teach instructor training classes unless the instructor has successfully completed a supervising instructor development program consisting of at least six additional semester hours or a program of study in driver education approved by the department [commissioner] that includes administering driver education programs and supervising and administering traffic safety education, except that the supervising teacher may allow driver education teachers and teaching assistants to provide training in areas appropriate for their level of certification or licensure.

(f)iiA driver education school may submit for department [agency] approval a curriculum for an instructor development program for driver education instructors. The program must:

(1)iibe taught by a person who has completed a

supervising instructor development program under Subsection (e); and

(2)iisatisfy the requirements of this section for the

particular program or type of training to be provided.

SECTION ___.31. Section 1001.254(a), Education Code, is amended to read as follows:

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(a)iiA temporary driver education instructor license may be issued authorizing a person to teach or provide classroom driver education training if the person:

(1)iihas completed the educational requirements

prescribed by Section 1001.253(d)(1);

(2)iiholds a Texas teaching certificate with an

effective date before February 1, 1986;

(3)iimeets all license requirements, other than

successful completion of the examination required under rules adopted by the State Board for Educator Certification to revalidate the teaching certificate; and

(4)iidemonstrates, in a manner prescribed by the department [commissioner], the intention to comply with the

examination requirement at the first available opportunity.

SECTION ___.32. Sections 1001.255(a), (b), and (c), Education Code, are amended to read as follows:

(a)iiThe department [agency] shall regulate as a driver education school a driver education instructor who:

(1)iiteaches driver education courses in a county

having a population of 50,000 or less; and

(2)iidoes not teach more than 200 students annually.

(b)iiAn instructor described by Subsection (a) must submit to the department [agency] an application for an initial or renewal driver education school license, together with all required documentation and information.

(c)iiThe department [commissioner] may waive initial or renewal driver education school license fees or the fee for a director or administrative staff member.

SECTION ___.33. Section 1001.256, Education Code, is amended to read as follows:

Sec.i1001.256.iiDUPLICATE LICENSE. A duplicate license may be issued to a driver education instructor or driving safety instructor if:

(1)iithe original license is lost or destroyed; and

(2)iian affidavit of that fact is filed with the

department [agency].

SECTION ___.34. The heading to Subchapter G, Chapter 1001, Education Code, is amended to read as follows:

SUBCHAPTER G. LICENSE EXPIRATION [AND RENEWAL]

SECTION ___.35. Sections 1001.351(a) and (b), Education Code, are amended to read as follows:

(a)iiNot later than the 15th working day after the course completion date, a course provider or a person at the course provider's facilities shall issue and send [mail] a uniform certificate of course completion by United States mail or through a commercial delivery service to a person who successfully completes an approved driving safety course.

3978 79th LEGISLATURE — REGULAR SESSION

(b)iiA course provider shall electronically submit to the department [agency] in the manner established by the department [agency] data identified by the department [agency] relating to uniform certificates of course completion issued by the course provider.

SECTION ___.36. Section 1001.352, Education Code, is amended to read as follows:

Sec.i1001.352.iiFEES FOR DRIVING SAFETY COURSE. (a)(1) A course provider shall charge each student:

(A)iiat least $26 [$25] for a driving safety course; [and]

(B)iia fee of at least $4, [$3] which shall be retained by the course provider to be used solely for course materials and for supervising and administering the course as required by this chapter and the rules of the commission; and

(C)iia fee of $2 to be remitted to the department for deposit in the general revenue fund.

(2)iiThe department shall periodically audit course providers to verify compliance with this subsection. A course provider shall make its books and records available to the department as needed to verify compliance with this section and failure to do so may be enforced pursuant to Subchapter J.

SECTION ___.37. Sections 1001.354(a) and (b), Education Code, are amended to read as follows:

(a)iiA driving safety course may be taught at a driving safety school if the school is approved by the department [agency].

(b)iiA driving safety school may teach an approved driving safety course by an alternative method that does not require students to be present in a classroom if the department [commissioner] approves the alternative method. The department [commissioner] may approve the alternative method if:

(1)iithe department [commissioner] determines that the approved driving safety course can be taught by the alternative method; and

(2)iithe alternative method includes testing and

security measures that are at least as secure as the measures available in the usual classroom setting.

SECTION ___.38. Sections 1001.404(b) and (c), Education Code, are amended to read as follows:

(b)iiThe department [commissioner] shall establish annually the rate of interest for a refund at a rate sufficient to provide a deterrent to the retention of student money.

(c)iiThe department [agency] may except a driver education school or course provider from the payment of interest if the school or course provider makes a good-faith effort to refund tuition, fees, and other charges but is unable to locate the student to whom the refund is owed. On request of the department [agency], the school or course provider shall document the effort to locate a student.

SECTION ___.39. Sections 1001.451 and 1001.452, Education Code, are amended to read as follows:

Sec.i1001.451.iiPROHIBITED PRACTICES. A person may not:

(1)iiuse advertising designed to mislead or deceive a

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 3979

prospective student;

(2)iifail to notify the department [commissioner] of

the discontinuance of the operation of a driver training school before the fourth working day after the date of cessation of classes and make available accurate records as required by this chapter;

(3)iiissue, sell, trade, or transfer:

(A)iia uniform certificate of course completion or

driver education certificate to a person or driver training school not authorized to possess the certificate;

(B)iia uniform certificate of course completion to

a person who has not successfully completed an approved, six-hour driving safety course; or

(C)iia driver education certificate to a person who has not successfully completed a department-approved [commissioner-approved] driver education course;

(4)iinegotiate a promissory instrument received as

payment of tuition or another charge before the student completes 75 percent of the course, except that before that time the instrument may be assigned to a purchaser who becomes subject to any defense available against the school named as payee; or

(5)iiconduct any part of an approved driver education

course or driving safety course without having an instructor physically present in appropriate proximity to the student for the type of instruction being given.

Sec.i1001.452.iiCOURSE OF INSTRUCTION. A driver education [training] school shall [may] not enroll a student[ [maintain, advertise, solicit for,] or conduct a course of instruction in this state before [the later of]:

(1)iithe 30th day after the date the school applies for a driver training school license; [or]

(2)iithe date the school receives a driver education [training] school license from the department [commissioner]; and

(3)iithe facilities and equipment are inspected and approved by the department.

SECTION ___.40. Sections 1001.453(d) and (e), Education Code, are amended to read as follows:

(d)iiSubchapter F, Chapter 51, Occupations Code, Section 51.353, Occupations Code, and Section [Sections 1001.454,] 1001.456(a) of this code [, and 1001.553] do not apply to a violation of this section or a rule adopted under this section.

(e)iiSection 51.352, Occupations Code, and Sections

[1001.455(a)(6),] 1001.501[, 1001.551, 1001.552,] and 1001.554 of this code do not apply to a violation of this section.

SECTION ___.41. Section 1001.456, Education Code, is amended to read as follows:

3980 79th LEGISLATURE — REGULAR SESSION

Sec.i1001.456.iiOTHER DISCIPLINARY ACTIONS. (a) If the department [agency] believes that a driver education school or instructor has violated this chapter or a rule or order of the commission or executive director [adopted under this chapter], the department [agency] may, without notice:

(1)iiorder a peer review;

(2)iisuspend the enrollment of students in the school

or the offering of instruction by the instructor; or

(3)iisuspend the right to purchase driver education

certificates.

(b)iiIf the department [agency] believes that a course provider, driving safety school, or driving safety instructor has violated this chapter or a rule or order of the commission or executive director [adopted under this chapter], the department [agency] may, without notice:

(1)iiorder a peer review of the course provider, driving safety school, or driving safety instructor;

(2)iisuspend the enrollment of students in the school or the offering of instruction by the instructor; or

(3)iisuspend the right to purchase [uniform

[certificates of] course completion certificate numbers.

(c) A peer review ordered under this section must be

conducted by a team of knowledgeable persons selected by the department [agency]. The team shall provide the department [agency] with an objective assessment of the content of the school's or course provider's curriculum and its application. The school or course provider shall pay the costs of the peer review.

(d)iiA suspension of enrollment under Subsection (a)(2) or (b)(2) means a ruling by the executive director [commissioner] that restricts a school from:

(1)iiaccepting enrollments or reenrollments;

(2)iiadvertising;

(3)iisoliciting; or

(4)iidirectly or indirectly advising prospective

students of its program or course offerings.

SECTION ___.42. The heading to Subchapter L, Chapter 1001, Education Code, is amended to read as follows:

SUBCHAPTER L. PENALTIES [AND ENFORCEMENT PROVISIONS]

SECTION ___.43. Section 1001.555, Education Code, is amended to read as follows:

(a)iiA person commits an offense if the person knowingly sells, trades, issues, or otherwise transfers, or possesses with intent to sell, trade, issue, or otherwise transfer, a uniform certificate of course completion, including a duplicate certificate, a course completion certificate number, including a duplicate number, or a driver education certificate to an individual, firm, or corporation not authorized to possess the certificate or number.

(b)iiThe department [agency] shall contract with the Department of Public Safety [department] to provide undercover and investigative assistance in the enforcement of Subsection (a).

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 3981

(c)iiA person commits an offense if the person knowingly possesses a uniform certificate of course completion, including a duplicate certificate, a course completion certificate number, including a duplicate number, or a driver education certificate and is not authorized to possess the certificate or number.

SECTION ___.44. Article 45.0511(b), Code of Criminal

Procedure, is amended to read as follows:

(b)iiThe judge shall require the defendant to successfully complete a driving safety course approved by the Texas Department of Licensing and Regulation [Education Agency] or a course under the motorcycle operator training and safety program approved by the designated state agency under Chapter 662, Transportation Code, if:

(1)iithe defendant elects driving safety course or

motorcycle operator training course dismissal under this article;

(2)iithe defendant has not completed an approved

driving safety course or motorcycle operator training course, as appropriate, within the 12 months preceding the date of the offense;

(3)iithe defendant enters a plea under Article 45.021

in person or in writing of no contest or guilty on or before the answer date on the notice to appear and:

(A)iipresents in person or by counsel to the court

a request to take a course; or

(B)iisends to the court by certified mail, return

receipt requested, postmarked on or before the answer date on the notice to appear, a written request to take a course;

(4)iithe defendant has a valid Texas driver's license or permit;

(5)iithe defendant is charged with an offense to which this article applies, other than speeding 25 miles per hour or more over the posted speed limit; and

(6)iithe defendant provides evidence of financial

responsibility as required by Chapter 601, Transportation Code.

SECTION ___.45. Section 51.308, Education Code, is amended to read as follows:

Sec.i51.308.iiDRIVER EDUCATION. A driver education course for the purpose of preparing students to obtain a driver's license may be offered by an institution of higher education, as defined by Section 61.003, with the approval of the Texas Department of Licensing and Regulation [Central Education Agency].

SECTION ___.46. Section 521.1655(a), Transportation Code, is amended to read as follows:

(a)iiA driver education school licensed under Chapter 1001, Education Code, [the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon's Texas Civil Statutes)] may administer to a student of that school the vision, highway sign, and traffic law parts of the examination required by Section 521.161.

SECTION ___.47. Section 521.203, Transportation Code, is amended to read as follows:

3982 79th LEGISLATURE — REGULAR SESSION

Sec.i521.203.iiRESTRICTIONS ON CLASS A AND B LICENSES. The department may not issue a Class A or Class B driver's license to a person who:

(1)iiis under 17 years of age;

(2)iiis under 18 years of age unless the person has

completed a driver training course approved by the Texas Department of Licensing and Regulation [Central Education Agency]; or

(3)iihas not provided the department with an affidavit, on a form prescribed by the department, that states that no vehicle that the person will drive that requires a Class A or Class B license is a commercial motor vehicle as defined by Section 522.003.

SECTION __.48. Subsection 521.204(a), Transportation Code, is amended to read as follows:

Sec.i521.204.iiRESTRICTIONS ON MINOR. (a) The department may issue a Class C driver's license to an applicant under 18 years of age only if the applicant:

(1)iiis 16 years of age or older;

(2)iihas submitted to the department a driver education certificate issued under Section 1001.055, Education Code [Section 9A, Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon's Texas Civil Statutes)], that states that the person has completed and passed a driver education course approved by the department under Section 521.205 or by the Texas Department of Licensing and Regulation [Education Agency];

(3)iihas obtained a high school diploma or its

equivalent or is a student:

(A)iienrolled in a public school, home school, or private school who attended school for at least 80 days in the fall or spring semester preceding the date of the driver's license application; or

(B)iiwho has been enrolled for at least 45 days,

and is enrolled as of the date of the application, in a program to prepare persons to pass the high school equivalency exam; and

(4)iihas passed the examination required by Section

521.161.

SECTION ___.49. Sections 521.205(b) and (d), Transportation Code, are amended to read as follows:

(b)iiThe department may not approve a course unless it determines that the course materials are at least equal to those required in a course approved by the Texas Department of Licensing and Regulation [Education Agency], except that the department may not require that:

(1)iithe classroom instruction be provided in a room

with particular characteristics or equipment; or

(2)iithe vehicle used for the behind-the-wheel instruction have equipment other than the equipment otherwise required by law for operation of the vehicle on a highway while the vehicle is not being used for driver training.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 3983

(d)iiCompletion of a driver education course approved under this section has the same effect under this chapter as completion of a driver education course approved by the Texas Department of Licensing and Regulation [Education Agency].

SECTION __.50. Subsections 521.222(a) and (c), Transportation Code, are amended to read as follows:

Sec.i521.222.iiINSTRUCTION PERMIT. (a) The department or a driver education school licensed under Chapter 1001, Education Code, [the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon's Texas Civil Statutes)] may issue an instruction permit, including a Class A or Class B driver's license instruction permit, to a person who:

(1)iiis 15 years of age or older but under 18 years of age;

(2)iihas satisfactorily completed and passed the classroom phase of an approved driver education course, which may be a course approved under Section 521.205;

(3)iimeets the requirements imposed under Section 521.204(3); and

(4)iihas passed each examination required under Section 521.161 other than the driving test.

(c) A driver education school may issue an instruction permit to a person 18 years of age or older who has successfully passed:

(1)iia six-hour adult classroom driver education course approved by the Texas Department of Licensing and Regulation [Education Agency]; and

(2)iieach part of the driver's examination required by Section 521.161 other than the driving test.

SECTION ___.51. Sections 1001.001(1), 1001.053(b) and (c), 1001.054(a) and (b), 1001.152, 1001.303, 1001.304, 1001.454, 1001.455, 1001.457, 1001.458, 1001.459, 1001.460, 1001.461, 1001.551, 1001.552, and 1001.553, Education Code, and Subchapter B, Chapter 543, Transportation Code, are repealed.

SECTION ___.52. (a) As soon as practicable after the effective date of this Act, the Texas Education Agency and the Texas Department of Licensing and Regulation shall develop a transition plan for transferring the functions performed by the Texas Education Agency under Chapter 1001, Education Code, to the Texas Department of Licensing and Regulation. The transition plan must include a timetable with specific steps and deadlines needed to complete the transfer.

(b)iiIn accordance with the transition plan developed by the Texas Education Agency and the Texas Department of Licensing and Regulation under Subsection (a) of this section, on November 1, 2005:

(1)iiall functions and activities relating to Chapter

1001, Education Code, performed by the Texas Education Agency immediately before that date are transferred to the Texas Department of Licensing and Regulation;

(2)iia rule or form adopted by the commissioner of

3984 79th LEGISLATURE — REGULAR SESSION

education that relates to Chapter 1001, Education Code, is a rule or form of the Texas Commission of Licensing and Regulation or the Texas Department of Licensing and Regulation, as applicable, and remains in effect until amended or replaced by that commission or department;

(3)iia reference in law to or an administrative rule of the Texas Education Agency that relates to Chapter 1001, Education Code, means the Texas Commission of Licensing and Regulation or the Texas Department of Licensing and Regulation, as applicable;

(4)iia complaint, investigation, or other proceeding

before the Texas Education Agency that is related to Chapter 1001, Education Code, is transferred without change in status to the Texas Department of Licensing and Regulation, and the Texas Department of Licensing and Regulation assumes, as appropriate and without a change in status, the position of the Texas Education Agency in an action or proceeding to which the Texas Education Agency is a party;

(5)iiany employee of the Texas Education Agency who is primarily involved in administering Chapter 1001, Education Code, becomes an employee of the Texas Department of Licensing and Regulation;

(6)iiall money, contracts, leases, property, and

obligations of the Texas Education Agency related to Chapter 1001, Education Code, are transferred to the Texas Department of Licensing and Regulation;

(7)iiall property in the custody of the Texas Education Agency related to Chapter 1001, Education Code, is transferred to the Texas Department of Licensing and Regulation; and

(8)iithe unexpended and unobligated balance of any

money appropriated by the legislature for the Texas Education Agency related to Chapter 1001, Education Code, is transferred to the Texas Department of Licensing and Regulation.

(c)iiBefore November 1, 2005, the Texas Education Agency may agree with the Texas Department of Licensing and Regulation to transfer any property of the Texas Education Agency to the Texas Department of Licensing and Regulation to implement the transfer

required by this Act.

(d)iiIn the period beginning September 1, 2005, and ending on November 1, 2005, the Texas Education Agency shall continue to perform functions and activities under Chapter 1001, Education Code, as if that chapter had not been amended by this Act, and the former law is continued in effect for that purpose.

SECTION ___.53. Before December 31, 2007, the department shall perform a complete review and approval of each six-hour driving safety course and alternative delivery method approved before May 1, 2005, to verify compliance with Chapter 1001, Education Code, and the rules of the department applicable to the course or method. The department shall charge each course provider and alternative method owner the fee applicable to an application for initial approval of a driving safety course, which is appropriated to the department to administer the requirements of this subsection. The department may revoke the approval of any course or alternative delivery method that is not in compliance.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 3985

SECTION ___.54. The changes in law made by this article apply only to a fee charged on or after September 1, 2005. A fee charged before September 1, 2005, is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

SECTION ___.55. The changes in law made by this article apply only to a license issued or renewed on or after September 1, 2005. An issuance or renewal that occurs before September 1, 2005, is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose.

(Olivo now present)

Amendment No. 36

Representative Grusendorf offered the following amendment to Amendment No.i35:

Amend Floor Amendment No. 35 by Grusendorf as follows:

On page 25, line 19 strike the word "river" and insert "driver"

Amendment No. 36 was adopted.

Amendment No. 37

Representative Alonzo offered the following amendment to Amendment No.i35:

Amend the Grusendorf amendment No. 35 to CSSB 1863 by adding to the new ARTICLE added to that bill the following appropriately numbered SECTION and renumbering subsequent SECTIONS of the added ARTICLE accordingly:

SECTION ____. Section 521.161, Transportation Code, is amended by adding Subsection (c-1) to read as follows:

(c-1) The department shall, from money currently available, design and administer in each county of this state an alternate oral examination for applicants who because of extreme circumstances are unable to take the traffic law and highway sign part of the examination in a manner authorized by Subsection (c). The alternate oral examination must be identical to the examination administered to other applicants under Subsection (c). If the applicant takes that part of the examination orally in addition to another testing method, the applicant is considered to have passed that part of the examination if the applicant passes either version of the examination. The department shall inform each person taking the examination of the person's rights under this subsection. The fee for an alternate oral examination is $15 in addition to any other fees applicable to an examination.

Amendment No. 37 was adopted.

Amendment No. 35, as amended, was adopted.

Amendment No. 38

Representative Hughes offered the following amendment to CSSBi1863:

3986 79th LEGISLATURE — REGULAR SESSION

Amend CSSB 1863 by inserting the following appropriately numbered section and renumbering the subsequent sections of the bill accordingly:

SECTIONi___.ii(a) Section 25.07(b), Tax Code, is amended to read as follows:

(b)iiExcept as provided by Sections 11.11(b) [Subsections (b)] and (c) [of Section 11.11 of this code], a leasehold or other possessory interest in exempt property may not be listed if:

(1)iithe property is permanent university fund land;

(2)iithe property is county public school fund agricultural land;

(3)iithe property is a part of a public transportation facility owned by an incorporated city or town or by a county and:

(A)iiis an airport passenger terminal building or a building used primarily for maintenance of aircraft or other aircraft services, for aircraft equipment storage, or for air cargo;

(B)iiis an airport fueling system facility;

(C)iiis in a foreign-trade zone:

(i)iithat has been granted to a joint airport board under Chapter 129, Acts of the 65th Legislature, Regular Session, 1977 (Article 1446.8, Vernon's Texas Civil Statutes);

(ii)iithe area of which in the portion of the zone located in the airport operated by the joint airport board does not exceed 2,500 acres; and

(iii)iithat is established and operating pursuant to federal law; or

(D)(i)iiis in a foreign trade zone established pursuant to federal law after June 1, 1991, which operates pursuant to federal law;

(ii)iiis contiguous to or has access via a taxiway to an airport located in two counties, one of which has a population of 500,000 or more according to the federal decennial census most recently preceding the establishment of the foreign trade zone; and

(iii)iiis owned, directly or through a corporation organized under the Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes), by the same incorporated city or town which owns the airport;

(4)iithe interest is in a part of:

(A)iia park, market, fairground, or similar public facility that is owned by an incorporated city or town; or

(B)iia convention center, visitor center, sports facility with permanent seating, concert hall, arena, or stadium that is owned by an incorporated city or town as such leasehold or possessory interest serves a governmental, municipal, or public purpose or function when the facility is open to the public, regardless of whether a fee is charged for admission;

(5)iithe interest involves only the right to use the property for grazing or other agricultural purposes;

(6)iithe property is owned by the Texas National Research Laboratory Commission or by a corporation formed by the Texas National Research Laboratory Commission under Section 465.008(g), Government Code, and is used or is useful in connection with an eligible undertaking as defined by Section 465.021, Government Code; or

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(7)iithe property is:

(A)iiowned by a municipality, a public port, or a navigation district created or operating under Section 59, Article XVI, Texas Constitution, or under a statute enacted under Section 59, Article XVI, Texas Constitution; and

(B)iiused as an aid or facility incidental to or useful in the operation or development of a port or waterway or in aid of navigation-related commerce.

(b)iiThis section applies only to the appraisal records for a tax year that begins on or after January 1, 2006.

(c)iiThis section takes effect January 1, 2006.

Amendment No. 38 was withdrawn.

Amendment No. 39

Representative Leibowitz offered the following amendment to CSSBi1863:

Amend CSSB 1863 (House Committee Report) by adding the following appropriately numbered ARTICLE to the bill and renumbering subsequent ARTICLES of the bill accordingly:

ARTICLE __. POWER MANAGEMENT SOFTWARE

SECTIONi__.01.iiSubchapter F, Chapter 2054, Government Code, is amended by adding Section 2054.133 to read as follows:

Sec.i2054.133.iiPOWER MANAGEMENT SOFTWARE. (a) After researching the software available, the department shall select power management software to be used, if technically feasible, by state agencies, including institutions of higher education as defined by Section 61.003, Education Code, to reduce the amount of energy required to operate state computer networks and networked personal computers.

(b)iiAs determined by the department, each state agency, including an institution of higher education, that would benefit from using power management software that would provide cost savings to this state in the state fiscal biennium ending August 31, 2007, shall purchase, lease, or otherwise acquire the software for the agency's computer networks to manage the energy usage of the agency's networked personal computers.

Amendment No. 39 was adopted. (Howard and Kolkhorst recorded voting no.)

Amendment No. 40

Representative Strama offered the following amendment to CSSBi1863:

Amend CSSB 1863 by adding a new article to the bill, appropriately numbered, to read:

ARTICLE ____. LOCAL GASOLINE TAX

SECTION ____.01. Chapter 370, Transportation Code, is amended by adding Subchapter I to read as follows:

SUBCHAPTER I. FINANCIAL PARTICIPATION OF CERTAIN COUNTIES IMPOSING LOCAL GASOLINE TAX

Sec. 370.351. DEFINITIONS. In this subchapter:

(1) "Dealer" has the meaning assigned by Section 162.001, Tax Code.

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(2) "Gasoline" has the meaning assigned by Section 162.001, Tax Code.

(3) "Jobber" means a person who:

(A) purchases tax-paid gasoline from a person who holds a license under Chapter 162, Tax Code; and

(B) makes a sale with the tax included to a person who maintains storage facilities for gasoline and uses all or part of the stored gasoline to operate a motor vehicle.

(4) "Motor vehicle" has the meaning assigned by Section 162.001, Tax Code.

(5) "Net gallon" has the meaning assigned by Section 162.001, Tax Code.

(6) "Public highway" has the meaning assigned by Section 162.001, Tax Code.

(7) "Sale" has the meaning assigned by Section 162.001, Tax Code.

Sec. 370.352. TAX ON SALE OF GASOLINE AUTHORIZED. (a) A county, by order of the commissioners court, may impose a tax on the sale of gasoline sold in the county to propel a motor vehicle on the public highways of this state if:

(1) the county is included in an authority or is adjacent to such a county, if the county which is not in an authority is in the same metropolitan planning organization as the county in the authority;

(2) the county is located in the boundaries of a metropolitan planning area that is served by a metropolitan planning organization; and

(3) imposition of the tax is approved at an election called for that purpose and held in each county located in that metropolitan planning area.

(a-1) This subchapter, including Subsection (a), does not apply to a county with a population of more than two million.

(b) The counties located in a metropolitan planning area described by Subsection (a)(2) may hold the election to authorize the imposition of the tax on the same uniform election dates or on different uniform election dates. If the counties hold the elections on different uniform election dates, a county included in that metropolitan planning area may not impose the tax until the imposition of the tax has been approved in each county.

Sec. 370.353. RATE OF TAX. (a) The tax authorized by this subchapter may be imposed in increments of one cent for each net gallon of gasoline sold in the county to propel a motor vehicle on the public highways of this state, with a minimum rate of three cents for each net gallon and a maximum rate of 10 cents for each net gallon.

(b) If the voters of the counties located in a metropolitan planning area described by Section 370.352(a)(3) authorize the imposition of the tax at different rates, each county shall impose the tax at the lowest authorized rate.

Sec. 370.354. ADOPTION ELECTION PROCEDURE. (a) An election to adopt the tax authorized by this subchapter is called by an order of the commissioners court.

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(b) At an election to adopt the tax, the ballot shall be prepared to permit voting for or against the proposition: "The adoption of a local tax on the sale of gasoline in (insert name of county) at the maximum rate of (insert proposed rate) cents per gallon."

Sec. 370.355. COMPUTATION OF TAX. (a) A person, including a dealer or jobber, who makes a sale of gasoline in a county authorized to impose the tax to a person who uses the gasoline to propel a motor vehicle on the public highways of this state shall collect the tax authorized by this subchapter for the benefit of the county.

(b) The seller shall add the amount of the tax authorized by this subchapter to the selling price of gasoline, and the tax is a part of the gasoline price, is a debt owed to the seller, and is recoverable at law in the same manner as the gasoline fuel charge.

(c) The tax authorized by this subchapter is in addition to the tax imposed by Chapter 162, Tax Code.

Sec. 370.356. EXEMPTIONS APPLICABLE. The exemptions provided by Section 162.104, Tax Code, apply to the tax authorized by this subchapter.

Sec. 370.357. EFFECTIVE DATE OF TAX. After the imposition of the tax has been approved in each county located in a metropolitan planning area described by Section 370.352(a)(2), the commissioners court of each county shall issue a concurrent order prescribing the date on which the adoption of the tax will take effect in those counties.

Sec. 370.358. COLLECTION AND ENFORCEMENT OF TAX. (a) A person, including a dealer or jobber, required to collect the tax authorized by this subchapter shall report and send the taxes to the county as provided by the county.

(b) The county may prescribe monetary penalties, including interest charges, for failure to keep records required by this subchapter, to report when required, or to pay the tax when due.

(c) The county may permit a person who is required to collect the tax authorized by this subchapter to retain a percentage of the amount collected and required to be reported as reimbursement to the person for the costs of collecting the tax. The county may provided that the person may retain the amount only if the person pays the tax and files reports as required by the county.

(d) The county attorney may bring suit against a person who violates this subchapter.

Sec. 370.359. REFUND. (a) A person who has paid the tax authorized by this subchapter on gasoline used by the person for a purpose other than to propel a motor vehicle on the public highways of this state or for a use exempted under Section 370.356 may file a claim for a refund.

(b) The county shall prescribe the procedures a person must use to obtain a refund under this section.

Sec. 370.360. REQUIRED PERMIT. The county may require a dealer, jobber, or other person required to collect, report, and pay the tax authorized by this subchapter to obtain a permit from the county.

3990 79th LEGISLATURE — REGULAR SESSION

Sec. 370.361. TRANSFER TO AUTHORITY. (a) Not later than the last day of the first month following each calendar quarter, the county treasurer shall send to the authority the taxes collected during that calendar quarter after payment of all refunds allowed by law and expenses of collection.

(b) Net tax revenue received by an authority under this subchapter shall be accounted for separately and may not be commingled with other authority revenue.

Sec. 370.362. USE OF TAX PROCEEDS. An authority may use net tax revenue received under this subchapter only to:

(1) reduce the number of lane miles included in a proposed transportation project or a part or section of a proposed transportation project for which the authority intends to impose a toll for use according to the authority's most recently adopted toll plan;

(2) reduce the amount of the toll charged for use of a transportation project or a part or section of a transportation project in use at the time the tax is imposed under this subchapter; and

(3) waive the toll charged for use of a transportation project or for a part or section of a transportation project by one or more classes of vehicles prescribed by the authority, such as public school buses and mass transit vehicles.

Amendment No. 40 was adopted. (Baxter, T. King, Kolkhorst, and Raymond recorded voting no.)

Amendment No. 41

Representative Leibowitz offered the following amendment to CSSBi1863:

Amend CSSB 1863 (House committee printing) by adding the following appropriately numbered article to the bill and renumbering subsequent articles accordingly:

ARTICLE ____. USE OF ENERGY-SAVING DEVICES FOR VENDING MACHINES IN STATE BUILDINGS

SECTIONi__.01.iiSubchapter B, Chapter 2165, Government Code, is amended by adding Section 2165.058 to read as follows:

Sec.i2165.058.iiVENDING MACHINES; ENERGY-SAVING DEVICE REQUIRED. (a) The commission shall require the use of an energy-saving device for each vending machine located in a building owned or leased by the state except a vending machine that contains a perishable food product, as defined by Section 96.001, Civil Practice and Remedies Code.

(b)iiNotwithstanding Subsection (a), the commission may not require the acquisition or installation of an energy-saving device for a vending machine that is owned or operated by an entity that owns or operates a total of 20 or fewer vending machines. However, the commission shall require the entity to activate and maintain any internal energy-saving or energy-management device or option that is already part of the machine or contained in the machine.

(c)iiAn entity that owns or operates a vending machine subject to this section is responsible for any expenses associated with the acquisition, installation, or maintenance of an energy-saving device required by this section.

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(d)iiThe commission may impose an administrative fine on an entity that operates a vending machine subject to this section in an amount not to exceed $250 a year for each machine found to be in violation of this section or related rules adopted by the commission.

(e)iiThe commission shall adopt rules relating to the specifications for and regulation of energy-saving devices required by this section.

SECTIONi__.02.ii(a) An entity that owns or operates a vending machine subject to Section 2165.058, Government Code, as added by this article, is not required to comply with that section or a related rule of the Texas Building and Procurement Commission until September 1, 2006.

(b)iiNotwithstanding Section 2165.058(d), Government Code, as added by this article, the Texas Building and Procurement Commission may impose a fine only in relation to a vending machine that is found to be operating in violation of Section 2165.058, Government Code, as added by this article, or a related rule of the commission, on or after September 1, 2006.

Amendment No. 41 was adopted. (Howard and Kolkhorst recorded voting no.)

(Paxton now present)

Amendment No. 42

Representative Elkins offered the following amendment to CSSBi1863:

Amend CSSB 1863 by adding the following appropriately numbered article to the bill and renumbering subsequent articles accordingly:

ARTICLE __. USE OF CERTAIN TRAFFIC PENALTIES

SECTION __.01. Subchapter D, Chapter 542, Transportation Code, is amended by adding Section 542.405 to read as follows:

Sec. 542.405. USE OF REVENUE FROM CERTAIN TRAFFIC PENALTIES. (a) In this section, "photographic traffic signal enforcement system" means a system that:

(1) consists of a camera system and vehicle sensor installed to exclusively work in conjunction with an electrically operated traffic-control signal;

(2) is capable of producing one or more recorded photographic or digital images that depict the license plate attached to the front or rear of a motor vehicle that is not operated in compliance with the instructions of the traffic-control signal; and

(3) is designed to enforce compliance with the instructions of the traffic-control signal by imposition of a civil or administrative penalty against the owner of the motor vehicle.

(b) This section applies only to a civil or administrative penalty imposed on the owner of a motor vehicle by a local authority that operates or contracts for the operation of a photographic traffic signal enforcement system with respect to a highway under its jurisdiction or that operates or contracts for the operation of

3992 79th LEGISLATURE — REGULAR SESSION

(c) Of the gross amount received by a local authority from the imposition of a civil or administrative penalty against the owner of a motor vehicle, the local authority may retain $1 and shall remit the remainder to the comptroller for deposit to the credit of the general revenue fund. Money deposited under this subsection may be used only to finance studies relating to improvement of the state transportation system.

SECTION __.02. Section 542.405, Transportation Code, as added by this article, applies to revenue received by a local authority unit of this state from the imposition of a civil or administrative penalty on or after the effective date of this article, regardless of whether the penalty was imposed before, on, or after the effective date of this article.

A record vote was requested.

Amendment No. 42 was adopted by (Record 762): 102 Yeas, 36 Nays, 2 Present, not voting.

Yeas — Allen, R.; Alonzo; Anderson; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Chisum; Cook, B.; Cook, R.; Crownover; Davis, J.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Edwards; Eiland; Eissler; Elkins; Escobar; Flynn; Frost; Gallego; Gattis; Geren; Giddings; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamilton; Hamric; Hardcastle; Hegar; Homer; Hopson; Howard; Hughes; Hunter; Hupp; Isett(C); Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Luna; McReynolds; Merritt; Miller; Nixon; Noriega, M.; Oliveira; Orr; Otto; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Rose; Smith, W.; Smithee; Solomons; Strama; Straus; Swinford; Talton; Taylor; Truitt; Turner; Uresti; Van Arsdale; Villarreal; Vo; West; Wong; Zedler.

Nays — Allen, A.; Anchia; Burnam; Castro; Chavez; Coleman; Corte; Davis, Y.; Dunnam; Dutton; Farabee; Farrar; Gonzales; Harper-Brown; Hartnett; Hilderbran; Hill; Hochberg; Hope; Jackson; Leibowitz; Madden; Martinez; Martinez Fischer; McCall; Menendez; Mowery; Naishtat; Olivo; Ritter; Rodriguez; Seaman; Solis; Thompson; Veasey; Woolley.

Present, not voting — Mr. Speaker; Baxter.

Absent, Excused — Hodge.

Absent — Bailey; Crabb; Flores; Herrero; McClendon; Moreno, P.; Morrison; Smith, T.

STATEMENTS OF VOTE

I was shown voting present, not voting on Record No. 762. I intended to vote yes.

Baxter

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I was shown voting yes on Record No. 762. I intended to vote no.

Driver

I was shown voting no on Record No. 762. I intended to vote yes.

Gonzales

When Record No. 762 was taken, I was in the house but away from my desk. I would have voted no.

Herrero

When Record No. 762 was taken, I was in the house but away from my desk. I would have voted no.

T. Smith

Amendment No. 43

Representative Miller offered the following amendment to CSSBi1863:

Amend CSSB 1863 (House committee printing) in Section 7.02 of the bill as follows:

(1) In the recital to the section (page 28, line 19), strike "Subsections (f) and (g)" and substitute "Subsections (f)-(i)".

(2) At the end of the section (page 29, between lines 5 and 6), insert:

(h) The commission shall establish a pilot project to streamline and expedite the cost reporting and auditing processes for intermediate care facilities for the mentally retarded that are not operated by the state and for the home and community-based services waiver program. The commission shall commence the pilot project in time to capture financial information for the 2005 fiscal year. The commission shall ensure that the 2005 fiscal year information is available for use in the 2006 legislative appropriations process for the 80th state legislative session. The commission may consider providing in the pilot program incentives for providers to submit independently audited financial information instead of reviewed financials. The pilot project must include the following features:

(1) a significantly simplified cost reporting process that is similar to standard financial reporting expectations in banking and that includes both allowable and non-allowable costs;

(2) reimbursement regulations that eliminate all minimum spending requirements, to ensure simplicity;

(3) rules that require providers to include with all reports submitted a financial review performed by an independent accounting firm licensed under Chapter 901, Occupations Code, in accordance with generally-accepted accounting principles and with commission guidelines; and

(4) provisions for filing financial information electronically that are:

(A) for the first year of the pilot program, optional; and

(B) after the first anniversary of the pilot program, mandatory.

(i) In developing the pilot project described by Subsection (h), the commission shall:

(1) revise reimbursement rules as necessary to implement the pilot program; and

3994 79th LEGISLATURE — REGULAR SESSION

(2) develop the simplified reporting process and system by a collaborative process involving:

(A) providers of services in intermediate care facilities for the mentally retarded and home and community-based services waiver program services; and

(B) accounting firms familiar with intermediate care facilities for the mentally retarded and the home and community-based services waiver program.

Amendment No. 43 was adopted.

Amendment No. 44

Representatives Ritter and Luna offered the following amendment to CSSBi1863:

Amend CSSB 1863 (house committee printing) by adding the following appropriately numbered ARTICLE to the bill and by renumbering subsequent ARTICLES of the bill accordingly:

ARTICLE . FEES FOR CERTAIN BEVERAGE CONTAINERS

SECTION .01. Subchapter H, Chapter 33, Natural Resources Code, is amended by adding Section 33.6035 to read as follows:

Sec. 33.6035. FEE ON BEVERAGE CONTAINER IF BEVERAGE TO BE CONSUMED WHERE SOLD. (a) In this section:

(1) "Beverage" means a nonalcoholic or alcoholic carbonated or noncarbonated liquid that is intended for human consumption. The term does not include milk or baby formula.

(2) "Beverage container" means a glass, metal, or plastic vessel that:

(A) can be hermetically sealed or capped; and

(B) contains a beverage at the time the vessel is sold by a facility.

(3) "Facility" means a person who sells a beverage in a container to a consumer for consumption on the premises. The term does not apply to a common carrier that sells a beverage to a passenger.

(4) "On-site recycling program" means a recycling program operated by a facility and approved by the commissioner.

(b) A facility shall collect a fee of five cents from a consumer for each beverage in a beverage container that the facility sells to the consumer.

(c) A facility that collects a fee under this section shall remit the fee to the comptroller in accordance with the following procedures:

(1) before remitting the fee to the comptroller, the facility may deduct two percent of the amount of the fee collected to cover the facility's administrative expenses;

(2) the facility shall file a sworn return with the comptroller not later than the 20th day of each month that:

(A) is in a form prescribed by the comptroller;

(B) includes a statement of the total gross receipts for the containers sold during the preceding month; and

(C) any other information required by the comptroller;

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(3) a fee due for a business day that occurs in two different months is allocated to the month in which the business day begins; and

(4) the total amount of fees due for the preceding month shall accompany the return and shall be payable to the state.

(d) Annually, the comptroller shall deposit revenue from the fees collected under this section as follows:

(1) the first $20 million collected shall be deposited in the account and may be appropriated only to the commissioner to be used for the purposes provided by Section 33.605;

(2) the next $20 million collected shall be deposited in the state land and water conservation account under Section 11.037(c), Parks and Wildlife Code, and may be appropriated only to the Parks and Wildlife Department to be used for programs for the planning, acquisition, operation, and development of the outdoor recreation resources of this state, including acquisition of land and water and interests in land and water;

(3) the next $10 million collected shall be deposited in the account and may be appropriated only to the commissioner to be used to make grants to a political subdivision to clean and maintain rivers within the boundaries of the subdivision;

(4) the next $4 million collected shall be deposited in the water assistance fund under Section 15.011, Water Code, and may be appropriated only to the Texas Water Development Board to be used by the board to:

(A) make grants for the planning, permitting, design, and development of brackish groundwater desalination demonstration projects at locations to be determined by the board; and

(B) employ two full-time equivalent employees to oversee the projects, monitor the development of desalination technology, and provide educational outreach and technology transfer; and

(5) all additional revenue collected shall be deposited in the general revenue fund.

(e) Each facility that collects the fee required by this section may submit, for approval by the commissioner, a proposal to create an on-site recycling program. On the commissioner's approval of the on-site recycling program, the facility shall receive:

(1) an amount not to exceed 2.5 cents for each beverage container sold; and

(2) the proceeds from the sale of the recycled beverage containers.

Amendment No. 44 was withdrawn.

Amendment No. 45

Representative Turner offered the following amendment to CSSBi1863:

Amend CSSB 1863 by adding the following appropriately numbered ARTICLE to read as follows and renumbering subsequent ARTICLES accordingly:

3996 79th LEGISLATURE — REGULAR SESSION

ARTICLE __. SYSTEM BENEFIT FUND

SECTION __.01. (a) Section 39.903(a), as amended by Chapters 211 and 1296, Acts of the 78th Legislature, Regular Session, 2003, is reenacted and amended to read as follows:

(a) The system benefit fund is a trust fund with the comptroller and shall be administered by the commission as a trustee on behalf of the entities eligible to receive funding under this section [an account in the general revenue fund. Money in the account may be appropriated only for the purposes provided by this section or other law. Interest earned on the system benefit fund shall be credited to the fund. Section 403.095, Government Code, does not apply to the system benefit fund].

SECTION __.02. This article takes effect September 1, 2007.

Representative Chisum moved to table Amendment No. 45.

(Hupp in the chair)

A record vote was requested.

The motion to table was lost by (Record 763): 66 Yeas, 79 Nays, 2 Present, not voting.

Yeas — Allen, R.; Anderson; Berman; Blake; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Chisum; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Delisi; Denny; Driver; Eissler; Elkins; Flynn; Gattis; Geren; Goolsby; Griggs; Grusendorf; Hamric; Hardcastle; Hartnett; Hill; Hope; Hopson; Howard; Hunter; Isett; Jackson; Keel; Keffer, J.; King, P.; King, T.; Kolkhorst; Krusee; Kuempel; Madden; McCall; Merritt; Miller; Morrison; Mowery; Nixon; Orr; Otto; Pitts; Reyna; Riddle; Seaman; Smith, W.; Smithee; Straus; Swinford; Talton; Van Arsdale; West; Wong; Woolley.

Nays — Allen, A.; Alonzo; Anchia; Bailey; Baxter; Bohac; Bonnen; Burnam; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Dawson; Deshotel; Dukes; Dunnam; Dutton; Edwards; Eiland; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Guillen; Haggerty; Hamilton; Harper-Brown; Hegar; Herrero; Hilderbran; Hochberg; Homer; Hughes; Jones, D.; Jones, J.; Keffer, B.; Laubenberg; Leibowitz; Luna; Martinez; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, P.; Naishtat; Noriega, M.; Oliveira; Olivo; Paxton; Peña; Phillips; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Rose; Smith, T.; Solis; Solomons; Strama; Taylor; Thompson; Truitt; Turner; Uresti; Veasey; Villarreal; Vo; Zedler.

Present, not voting — Mr. Speaker; Hupp(C).

Absent, Excused — Hodge.

Absent — Laney.

Amendment No. 45 - Point of Order

Representative Chisum raised a point of order against further consideration of Amendment No. 45 under Rule 11, Section 2 of the House Rules on the grounds that it is not germane to the bill.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 3997

The point of order was withdrawn.

Amendment No. 45 was adopted.

Amendment No. 46

Representative Villarreal offered the following amendment to CSSBi1863:

Amend CSSB 1863 as follows:

On page__, after line__, insert the following appropriately numbered sections:

SECTION 1. The heading to Subchapter C, Chapter 22, Tax Code, is amended to read as follows:

SUBCHAPTER C. [OTHER] REPORTS OF POLITICAL SUBDIVISION ACTIONS

SECTION 2. Chapter 22, Tax Code, is amended by adding Subchapter D to read as follows:

SUBCHAPTER D. REPORT OF SALES PRICE

Sec. 22.61. SALES PRICE DISCLOSURE REPORT. (a) Except as provided by Subsection (b), not later than the 10th day after the date the deed is recorded in the county real property records, the purchaser or grantee of real property under a recorded deed conveying an interest in the real property shall file a sales price disclosure report with the chief appraiser of the appraisal district established for the county in which the property is located.

(b) This section does not apply to a sale or other transfer of real property if:

(1) the sale or other transfer is made:

(A) pursuant to a court order;

(B) to or from a trustee in bankruptcy;

(C) pursuant to a power of sale under a deed of trust or other encumbrance secured by the property;

(D) by a deed in lieu of foreclosure;

(E) by one co-owner to one or more other co-owners;

(F) to a spouse or to a person or persons in the first degree of lineal consanguinity of one or more of the sellers or grantors;

(G) to or from a governmental entity;

(H) pursuant to the power of eminent domain; or

(I) to a utility company and the real property is an easement, license, or right-of-way; or

(2) the real property is a severed mineral interest.

(c) A sales price disclosure report must be signed by the purchaser or grantee of the real property described in the report.

Sec. 22.62. REPORT FORM. (a) A sales price disclosure report filed under this subchapter must read as follows, with the appropriate information included in the blanks:

SALES PRICE DISCLOSURE REPORT

Section 22.61, Tax Code, requires a purchaser or grantee under a deed to prepare this report, sign it, and file it with the chief appraiser of the appraisal district established for the county in which the property is located not later than the 10th day after the date the deed is recorded. This report is not required to be

3998 79th LEGISLATURE — REGULAR SESSION

Seller's or grantor's name:

Purchaser's or grantee's name:

Purchaser's or grantee's address:

Property description (as stated in deed):

Sales price of or other consideration paid for the property:

The method used to finance the sales price or other consideration was: [] none (cash sale) [] cash and third-party financing [] cash and seller financing [] exchange of other property [] other, describe:

Describe any unusual or extraordinary terms of the sale or transfer that affected the amount of the sales price or other consideration:

Provide any additional information relevant to the sale or transfer, including:

(1) whether the sale or transfer involved property other than real property and the type of property, whether tangible or intangible, involved in the sale or transfer;

(2) whether the sale or transfer involved property located in more than one appraisal district and, if so, the portion of the sales price or other consideration allocated to the property located in the appraisal district with which the report is filed;

(3) in the case of a sale, whether the sale is the sale of an entire business or business unit; and

(4) any other facts or circumstances that affected the sales price or other consideration (optional):

To the best of my knowledge, this statement is true and accurate.

Purchaser's or grantee's signature:

Date:

Return this form to:

(b) The appraisal district shall include at the end of the form instructions for the filing of the form by mail, hand delivery, or, if permitted by the chief appraiser, facsimile machine or other electronic means.

(c) Each appraisal district shall prepare and make available sales price disclosure report forms that conform to the requirements of this section. Except for instructions for the filing of the form, no additional information may be required to be included in a sales price disclosure report form.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 3999

Sec. 22.63. FILING AND RECEIPT OF REPORT. (a) A purchaser or grantee may file a sales price disclosure report with a chief appraiser by mail, hand delivery, or, if permitted by the chief appraiser, facsimile machine or other electronic means.

(b) On receipt of the completed sales price disclosure report, the chief appraiser shall provide to the purchaser or grantee a written acknowledgement that the report has been received. If the acknowledgement of receipt is mailed, the chief appraiser shall mail it to the purchaser or grantee at the address provided in the report.

Sec. 22.64. PREPARATION OF REPORT; IMMUNITY FROM LIABILITY. (a) A sales price disclosure report must be prepared by the purchaser or grantee of the property described in the report or by a person on behalf of the purchaser or grantee.

(b) A person who prepares a sales price disclosure report on behalf of a purchaser or grantee of the property described in the report is not liable to any person for preparing the report or for any unintentional error or omission in the report.

Sec. 22.65. ACTION TO COMPEL COMPLIANCE. The chief appraiser may bring an action for an injunction to compel a person to comply with the requirements of this subchapter. If the court finds that this subchapter applies and that the person has failed to fully comply with its requirements, the court:

(1) shall order the person to comply; and

(2) may assess costs and reasonable attorney's fees against the person.

Sec. 22.66. PUBLIC INFORMATION. A sales price disclosure report filed with the chief appraiser under this subchapter is a public record and must be made available on request for inspection and copying during normal business hours.

SECTION 3. Section 23.013, Tax Code, is amended to read as follows:

Sec. 23.013. MARKET DATA COMPARISON METHOD OF APPRAISAL. (a) If the chief appraiser uses the market data comparison method of appraisal to determine the market value of real property, the chief appraiser shall use comparable sales data and shall adjust the comparable sales to the subject property.

(b) The chief appraiser may use information contained in a sales price disclosure report filed under Subchapter D, Chapter 22, in determining the market value of real property but may not increase the market value of the real property described in the report solely on the basis of the information contained in the report.

SECTION 4. (a) As soon as practicable after the effective date of this Act, but not later than January 1, 2006, each appraisal district shall prepare and make available sales price disclosure report forms as provided by Section 22.62, Tax Code, as added by this Act.

(b) This Act applies only to a sale of real property that occurs on or after January 1, 2006.

4000 79th LEGISLATURE — REGULAR SESSION

SECTION 5. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2005.

(b) Sections 1, 2, and 3 of this Act take effect January 1, 2006.

Amendment No. 46 - Point of Order

Representative Orr raised a point of order against further consideration of Amendment No. 46 under Rule 11, Section 2 of the House Rules on the grounds that it is not germane to the bill.

The point of order was withdrawn.

Amendment No. 46 was withdrawn.

(Speaker in the chair)

RECESS

At 11:47 a.m., the speaker announced that the house would stand recessed until 1 p.m. today.

AFTERNOON SESSION

The house met at 1 p.m. and was called to order by the speaker.

CSSB 1863 - (pending business)

Representative Pitts moved to postpone consideration of CSSBi1863 until 10 a.m. tomorrow.

The motion prevailed.

POSTPONED BUSINESS

The following bills were laid before the house as postponed business:

SB 1691 ON SECOND READING
(Eiland - House Sponsor)

SB 1691, A bill to be entitled An Act relating to certain retired school employees and the powers and duties of the Teacher Retirement System of Texas; providing a penalty.

SB 1691 was read second time on May 22 and was postponed until 10:30ip.m. May 22.

(Crownover in the chair)

Amendment No. 1

Representative Eiland offered the following amendment to SBi1691:

Amend SB 1691 (house committee printing) as follows:

(1) In SECTION 6 of the bill, in added Section 22.103, Education Code, in the first sentence (page 6, lines 11-12), strike "Subject to the availability of funds, each" and substitute "Each".

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4001

(2) In SECTION 6 of the bill, in added Section 22.103, Education Code, in the first sentence (page 6, lines 19-21), strike "multiplied by the amount specified in the General Appropriations Act for purposes of this subchapter and divided by 12" and substitute "multiplied by $1000 or a greater amount as provided by the General Appropriations Act for purposes of this subchapter".

Amendment No. 1 was withdrawn.

Amendment No. 2

Representative McReynolds offered the following amendment to SBi1691:

Amend SB 1691 (house committee printing) as follows:

(1)iiStrike SECTION 12 of the bill (page 15, lines 18-25).

(2)iiInsert the following new SECTION to the bill, numbered appropriately:

SECTIONi___.iiSection 825.110, Government Code, is amended to read as follows:

Sec.i825.110.iiDETERMINATION OF ANNUAL COMPENSATION.iiThe board of trustees shall [may] adopt rules to exclude from annual compensation all or part of salary and wages in the final years of a member's employment that reasonably can be presumed to have been derived from a conversion of fringe benefits, maintenance, or other payments not includable in annual compensation to salary and wages. The board of trustees shall [may] adopt rules that include a percentage limitation on the amount of increases in annual compensation that may be subject to credit and deposit during a member's final years of employment.

(3)iiRenumber SECTIONS of the bill accordingly.

Representative Eiland moved to table Amendment No. 2.

A record vote was requested.

The motion to table prevailed by (Record 764): 85 Yeas, 55 Nays, 2 Present, not voting.

Yeas — Allen, R.; Baxter; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Casteel; Chisum; Cook, B.; Corte; Crabb; Crownover(C); Davis, J.; Dawson; Delisi; Denny; Driver; Eiland; Eissler; Elkins; Flores; Flynn; Frost; Gattis; Geren; Goolsby; Griggs; Grusendorf; Haggerty; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hill; Hope; Hunter; Hupp; Isett; Jackson; Jones, D.; Keffer, B.; King, P.; King, T.; Kolkhorst; Krusee; Kuempel; Laubenberg; Madden; McCall; McClendon; Merritt; Miller; Morrison; Mowery; Nixon; Oliveira; Orr; Otto; Paxton; Phillips; Pitts; Quintanilla; Reyna; Riddle; Ritter; Seaman; Smith, T.; Smithee; Solomons; Strama; Straus; Swinford; Talton; Taylor; Truitt; Van Arsdale; Vo; Wong; Woolley; Zedler.

Nays — Allen, A.; Alonzo; Anchia; Anderson; Bailey; Burnam; Campbell; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dunnam; Dutton; Edwards; Escobar; Farabee; Farrar; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Guillen; Hamilton; Herrero; Hilderbran; Hochberg; Homer; Hopson;

4002 79th LEGISLATURE — REGULAR SESSION

Present, not voting — Mr. Speaker; Noriega, M.

Absent, Excused — Hodge.

Absent — Dukes; Gallego; Keffer, J.; Moreno, P.; Pickett; Rose.

STATEMENTS OF VOTE

When Record No. 764 was taken, I was in the house but away from my desk. I would have voted no.

Gallego

When Record No. 764 was taken, I was in the house but away from my desk. I would have voted no.

Rose

I was shown voting yes on Record No. 764. I intended to vote no.

Strama

Amendment No. 3

Representative McReynolds offered the following amendment to SBi1691:

Amend SB 1691 (house committee printing) by inserting the following new SECTION to the bill, numbered appropriately, and renumbering subsequent SECTIONS of the bill accordingly:

SECTIONi___.iiSection 825.110, Government Code, is amended to read as follows:

Sec.i825.110.iiDETERMINATION OF ANNUAL COMPENSATION.iiThe board of trustees shall [may] adopt rules to exclude from annual compensation all or part of salary and wages in the final years of a member's employment that reasonably can be presumed to have been derived from a conversion of fringe benefits, maintenance, or other payments not includable in annual compensation to salary and wages. The board of trustees shall [may] adopt rules that include a percentage limitation on the amount of increases in annual compensation that may be subject to credit and deposit during a member's final years of employment.

Amendment No. 3 was adopted.

Amendment No. 4

Representative Giddings offered the following amendment to SBi1691:

Amend SB 1691, Section 21, by adding "Except as provided herein," before the word "Chapter" on page 20, line 24, and inserting the following language at the between the end of page 21, line 4, and the beginning of page 21, line 5: "The retirement system shall be subject to the relevant requirements of Chapter 412, Texas Labor Code, only for the specific program(s) or service(s) the board elects to obtain from or through the State Office of Risk Management."

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4003

Amendment No. 5

Representative Eiland offered the following amendment to Amendment No.i4:

Amend Amendment No. 4 by Giddings, in the beginning of the full sentence added by the amendment, by striking "The retirement system", and substituting "In accordance with terms mutually agreed upon by both parties, the retirement system".

Amendment No. 5 was adopted.

Amendment No. 4, as amended, was adopted.

Amendment No. 6

Representative Hardcastle offered the following amendment to SBi1691:

Amend SB 1691 (house committee printing), in SECTION 29 of the bill, by striking added Subsection (e), Section 825.4092, Government Code (page 30, lines 5-8), and substituting:

(e)iiThe amounts required to be paid under Subsections (b) and (c) are not required to be paid by a reporting employer for a retiree who was reported under the retirement system rules in effect for the report month of January 2005 by:

(1)iithat reporting employer; or

(2)iianother employer, if both employers are school districts that consolidated into a consolidated school district on or before September 1, 2005.

Amendment No. 6 was adopted.

Amendment No. 7

Representative Phillips offered the following amendment to SBi1691:

Amend SB 1691 (house committee printing), in SECTION 29 of the bill, by striking added Subsection (e), Section 825.4092, Government Code (page 30, lines 5-8), and substituting:

(e) The amounts required to be paid under Subsections (b) and (c) are not required to be paid by a reporting employer for a retiree if:

(1) the retiree was reported under the retirement system rules in effect for the report month of January 2005 by that reporting employer; or

(2) the retiree:

(A) is reported under the retirement system rules for a month during the 2005-2006 school year by that reporting employer;

(B) was reported under the retirement system rules in effect for the report month after January 2005 by a different employer; and

(C) has not, for a report month of January 2005, been reported by any employer other than the two employers described by Paragraph (A) and Paragraph (B).

Amendment No. 7 failed of adoption. (Guillen recorded voting yes.)

4004 79th LEGISLATURE — REGULAR SESSION

MESSAGE FROM THE SENATE

A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 1).

SB 1691 - (consideration continued)

Amendment No. 8

Representative Coleman offered the following amendment to SBi1691:

Amend SB 1691, on page 49, by inserting a new Section 62 as follows and by renumbering the remaining section accordingly.

"SECTION 62. Notwithstanding any other provision of law, the changes made by SB 1691, 79th Legislature, Regular Session, do not take effect unless HB 2, 79th Legislature, Regular Session, or similar legislation, is enacted that would provide each classroom teacher, full-time librarian, full-time counselor and full-time school nurse a monthly salary increase of not less than $300."

Representative Eiland moved to table Amendment No. 8.

A record vote was requested.

The motion to table prevailed by (Record 765): 83 Yeas, 59 Nays, 2 Present, not voting.

Yeas — Allen, R.; Anderson; Baxter; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Chisum; Cook, B.; Corte; Crabb; Crownover(C); Davis, J.; Dawson; Delisi; Denny; Driver; Eiland; Eissler; Elkins; Flynn; Geren; Goodman; Goolsby; Griggs; Grusendorf; Haggerty; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Hope; Howard; Hunter; Hupp; Isett; Jackson; Jones, D.; Keel; Keffer, B.; Keffer, J.; King, P.; Kolkhorst; Krusee; Kuempel; Laubenberg; Luna; Madden; McCall; Merritt; Miller; Morrison; Mowery; Nixon; Orr; Otto; Paxton; Pitts; Riddle; Ritter; Seaman; Smith, T.; Smith, W.; Solomons; Straus; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wong; Woolley; Zedler.

Nays — Allen, A.; Alonzo; Anchia; Bailey; Burnam; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Edwards; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Giddings; Gonzales; Gonzalez Toureilles; Guillen; Hamilton; Herrero; Hochberg; Homer; Hopson; Jones, J.; King, T.; Laney; Leibowitz; Martinez; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, P.; Naishtat; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Reyna; Rodriguez; Rose; Solis; Strama; Thompson; Turner; Uresti; Veasey; Villarreal; Vo.

Present, not voting — Mr. Speaker; Noriega, M.

Absent, Excused — Hodge.

Absent — Gattis; Hughes; Phillips; Smithee.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4005

SB 1691 - POINT OF ORDER

Representative Y. Davis raised a point of order against further consideration of SB 1691 under Rule 4, Section 32(c) of the House Rules on the grounds that the bill analysis is incorrect and misleading.

The chair overruled the point of order.

MEMORANDUM BY REPRESENTATIVE Y. DAVIS

"Each committee report on a bill...must include in summary or section-by-section form a detailed analysis of the subject matter of the bill or resolution, specifically including...an analysis of the content of the bill." See Rule 4, Sec. 32(c), House Rules (79th Legislature).

VIOLATION 1

SECTION 21 of the section-by-section analysis states that the bill adds Section 825.103(e), requiring "the board of trustees to control all aspects of information technology and associated resources relating to TRS, including computer data management" See Bill Analysis, SB 1691, page 6 (79th Legislature). The bill states, "the board of trustees shall control all aspects of information technology and associated resources relating to the retirement system, including computer, data management" See House Committee Report, 1st Printing, SB 1691, page 22 (79th Legislature).

The omission of the comma between "computer" and "data" found in the bill analysis is not a harmless typographical error. The error significantly changes the meaning of the text and misrepresents the content of the bill in violation of the Rules of the House.

The bill requires the board of trustees to control all aspects of information technology and associated resources. The bill explicitly lists certain types of operations and tasks in order to clarify to what "all aspects of information technology and associated resources" refers. The bill clarifies that "all aspects of information technology and associated resources" refers to computer operations and data management operations. However, the bill analysis states that "all aspects of information technology and associated resources" includes computer data management operations, thus misrepresenting the content of the bill by failing to state that the information technology and associated resources include computer operations and, separately, data management operations. Computer operations and data management operations constitute something wholly distinct from computer data management operations.

To clarify, the board is required to control non-computerized data management operations as well as computerized data management operations because data management operations encompass both computerized and non-computerized data. Additionally, the board is required to control computer operations, not simply computer data management which does not encompass the broader concept of all computer operations.

4006 79th LEGISLATURE — REGULAR SESSION

VIOLATION 2

SECTION 22 of the section-by-section analysis contains a gaping omission that represents a failure to analyze, in detail, the content of the bill, thus directly violating the Rules of the House. The bill analysis fails to state that the bill strikes language that requires the board to purchase insurance only "from an insurer licensed to do business in this state" See Bill Analysis, SB 1691, page 6 (79th Legislature) and House Committee Report, 1st printing, SB 1691, pages 22-23 (79th Legislature). This change allows the board to purchase insurance from an insurer not lincensed in Texas. Given the thoroughness of the analysis, an omission of this nature constitutes a deception and creates an affirmative harm to members.

VIOLATION 3

SECTION 27 of the section-by-section analysis states that the bill adds Subsection 825.403(1) to require that the commissioner of education notify TRS in writing of changes in charter and funding status of certain open-enrollment charter schools and other reporting entities. This statement is inaccurate. While the bill does require the commissioner to notify TRS in cases of cessation or resumption of reception of state funds, the bill does not require the commissioner to notify TRS in cases of the issuance of a charter (only in cases of the revocation, denial of renewal, or surrender of a charter). Stating that the bill requires the commissioner to notify TRS of changes in charter status includes the issuance of a charter, yet, the bill does not require notification in such a case. Thus, the bill analysis indicates that the commissioner is required to do something that he or she is not actually required to do.

VIOLATION 4

SECTION 29 of the section-by-section analysis states that the bill adds Section 825.4092(c) to require that, "the employer who reports the employment of a retiree...for each retiree who is enrolled in the Texas Public School Employees Group Benefits Program under Chapter 1575 (Texas Public School Employees Group Benefits Program), Insurance Code, to contribute to the trust fund under that chapter any difference between" certain amounts. This statement is inaccurate and impossible. Chapter 1575, Insurance Code, does not establish the "Texas Public School Employees Group Benefits Program." Chapter 1575, Insurance Code, does establish the "Texas Public School Employees Group Insurance Program," and, indeed, the bill states, "for each retiree who is enrolled in the Texas Public School Employees Group Insurance Program under Chapter 1575." This constitutes an explicit inaccuracy in the bill analysis that represents a violation of the Rules of the House.

VIOLATION 5

SECTION 29 of the section-by-section analysis states that the bill adds Section 825.4092(c) to require, "the amount of the required payment to be prorated among the employers if more than one employer reports the retiree to TRS." The bill actually states, "if more than one employer reports the retiree to the retirement system during a month, the amount of the required payment shall be prorated among the employers." There exists an immensely important logical

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4007

VIOLATION 6

SECTION 45 of the section-by-section analysis states, "amends Section 1576.006, Insurance Code, to authorize TRS to adopt rules as necessary to administer, rather than implement, this subchapter." This is a gross inaccuracy. The bill amends Section 1576.006, Insurance Code, to authorize TRS to adopt rules as necessary to administer the chapter—not the subchapter. The practical difference between the actual effect of the bill and the effect of the bill if it were as the bill analysis states is extremely significant and would constitute a drastic change in rulemaking authority.

For the foregoing reasons, the point of order should be sustained.

SB 1691 - STATEMENT OF LEGISLATIVE INTENT

REPRESENTATIVE SOLOMONS: Thank you, Madam Chair, Madam Speaker. Craig, I've got some questions I want to ask you just for the record. I've supported you on the bill, I've supported you on the amendments. I did want to ask you about this little blue form that I got that brings up some issues. The first part says that SB 1691 takes away $1.5 billion in pension benefits from half a million teachers and other education employees in public schools and higher education. Is that true?

REPRESENTATIVE EILAND: Nope. This bill has an actuarial impact of $450 million and the only place that this comes from is what is the anticipated savings of the pension fund for the retirement behavior pattern alteration.

SOLOMONS: So it's not taking away $1.5 billion in pension benefits as it's described in this form that we were handed?

EILAND: No. This is a qualified plan and you can't take benefits that have been vested.

SOLOMONS: Okay, one of the statements in here says that SB 1691 overrides the rule of 80 by setting a minimum age of 60 per standard retirement benefits. Is that true?

EILAND: It would be true if you finished the sentence, and saying "applies to sophomores in college." If you recall, one of the purposes of this bill is to save the rule of 80 and not go back to a rule of 85. And so this bill applies, if you meet the rule of 80 the only thing that impacts you in this bill is that your highest five years as opposed to the highest three-year average will be used to calculate your retirement benefit. Like I said yesterday, that is not unprecedented. We did that. Until 1961 we did 10-year highest average, 1981 is when we switched from the highest five-year average to the three-year average.

SOLOMONS: So that's a misstatement unless it goes further and explains what we're doing in connection with the rule of 80.

4008 79th LEGISLATURE — REGULAR SESSION

EILAND: That leaves out the grandfather provision. Remember, we talked about the mother of all grandfathers that says, if you don't meet the rule of 80 and you're at least 60 years old, you'll take a five percent reduction in your annuity benefit. That only applies if you're not working in the system now, if you don't work in the system next year, and you don't work in the system the year after that.

SOLOMONS: The next thing I have is that this statement says that SB 1691 eliminates the state's commitment to provide a $1,000 health care supplement for teachers and school support personnel.

EILAND: That is not true. The appropriations bill moved the funding for the $1,000 or $500 teacher pass through. Whatever it is, they moved the funding from that to TRS, to TEA. So this bill recognizes the appropriations bill moving of that funding and moves it from TRS to TEA. That is just not accurate.

SOLOMONS: That's simply not a true statement as it applies to SB 1691.

EILAND: Correct.

SOLOMONS: The bill says it lowers—this statement, this form that we were handed says SB 1691 lowers pensions by basing them on employees best five years instead of three. Is that true?

EILAND: That is true except for the grandfather provision that grandfathers over a third of current teachers. We have 1,718,000 active members. This bill on this provision grandfathers anyone that meets the rule of 50, has served 25 years, or meets the rule of 70. Other than that, that is a fairly accurate statement.

SOLOMONS: Okay, and last couple things. It says that SB 1691 increases active employee pay deductions for TRS care by another 30 percent. Is that true?

EILAND: It is true that it goes from .5 to .65 and so whatever that math is. If you remember last session, we put in that active teachers would contribute to the retirees' health care by .5 percent of salary school districts contribute. So the appropriations bill, as I explained, introduced $233 million underfunded on retirees' health care. We have split that retirees' health care $233 million up between the state, the school districts, and active teachers in an attempt to avoid increasing retirees' monthly premiums. If we did not do this, we would have to increase their premiums by 14 percent.

SOLOMONS: A couple last things. It says that SB 1691 drastically reduces benefits for those with at least 20 years of service who retire early. Is that a true statement?

EILAND: That's a fairly true statement. What we're doing right now is if you do not meet the rule of 80, okay, you do not meet the rule of 80 and you serve 20 years, you can retire early and take an actuarial unsound reduction of two percent. It should be around 12 percent, so that is true. We are not going to incentivize people to retire early because we cannot afford it. If you remember on retiree health care it costs the state, we subsidize retirees' health care because we don't

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4009

SOLOMONS: The last, but not least, this says SB 1691 means a significant loss of benefits for more than 500,000 current teachers and other education employees who currently contribute to TRS. Is that a true statement?

EILAND: It depends on what you would consider significant because we eliminate air time for everybody, which means if you're going to buy air time, you've got to do that by December. We do eliminate the early retirement subsidize. We do say if you're not currently working, we're going to eliminate out-of-state subsidies. We're doing things that say we're not going to subsidize and incentivize actuarially unsound things.

REMARKS ORDERED PRINTED

Representative Solomons moved to print remarks between Representative Eiland and Representative Solomons.

The motion prevailed.

SB 1691 - REMARKS BY REPRESENTATIVE Y. DAVIS

Thank you, Mr. Speaker and members. I just wanted to take a couple of seconds to talk about what we're doing here. I think it's important that we are clear about what our commitments are and what we plan on doing. I offered a couple points of order on this bill because I think it's important that we not get caught up into creating public policy that would put our constituents and our districts against each other, competing for dollars. The State of Texas has the resources to make do if it wants to do it. There are many ways that we can make this fund solvent. There is not question that we all want to have the system solvent. The question is whether or not we're willing to do it the correct way or are we committed in doing it in this patched approached.

The argument here is it's important that we do something, and so the ends justify the means. Clearly, clearly we've got to stop making public policy in that manner. I will tell you, arguing to take money to place it into a retiree's pot, to take it out of teachers that are active now to support the retirees, is just wrong. We are not continuing to move in that way. We keep undermining our integrity and our commitment by doing these shams through our public policy. Last session, we cut teachers, we continued to do this, and we come up with shams saying we've got to make it solvent. Won't we make the commitment to do it? Why don't we put the money where we need to put it and show that we don't have this patched approach.

That's the argument here. The argument is not whether or not we need to do it, but whether or not we want to do it right, whether we want to continue to have our constituents fighting and competing over these limited dollars when we leave so many other dollars off the table. These are different times and these are difficult times financially. We ought to make a commitment. And if everybody

4010 79th LEGISLATURE — REGULAR SESSION

So members, I ask you to think about this before you cast your vote for this bill. Do you really think it's good public policy to continue to make public policy on the backs of others, at the expense of others, instead of ponying up as a state and make a real commitment, and do what's right in the systemic way, so when we leave home we can tell folks that we worked for them? We worked for the greater good of this state.

So I'd ask you to think about and do as I'm going to do. I'm going to pass and not vote against my teachers or retirees. I think they are too important to the fabric of our communities and to our society for us to be poised to vote against one or the other because we, as a state legislative body, have not done what we need to do with the appropriations process. We have not set the proper priorities and we keep hiding behind these shams of approaches to deal with a band-aid approach.

So I'd ask you to really think about, do you really want to go back home and say this is the only way we could do this? Because everyone of you know we could do it differently and better and have a more systemic commitment to these programs. So I'd ask you to join me and not vote against either one of your constituencies, either one of them.

A record vote was requested.

SB 1691, as amended, was passed to third reading by (Record 766): 115 Yeas, 16 Nays, 13 Present, not voting.

Yeas — Allen, R.; Anderson; Bailey; Baxter; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Casteel; Chavez; Chisum; Cook, B.; Cook, R.; Corte; Crabb; Crownover(C); Davis, J.; Dawson; Delisi; Denny; Deshotel; Driver; Eiland; Eissler; Elkins; Escobar; Farabee; Flynn; Frost; Gattis; Geren; Gonzales; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Herrero; Hill; Hochberg; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jackson; Jones, D.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Luna; Madden; Martinez; Martinez Fischer; McCall; McReynolds; Merritt; Miller; Morrison; Mowery; Naishtat; Nixon; Oliveira; Orr; Otto; Paxton; Phillips; Pitts; Puente; Quintanilla; Reyna; Riddle; Ritter; Rodriguez; Seaman; Smith, T.; Smith, W.; Solomons; Strama; Straus; Swinford; Talton; Taylor; Truitt; Uresti; Van Arsdale; Veasey; Villarreal; Vo; West; Wong; Woolley; Zedler.

Nays — Allen, A.; Coleman; Dukes; Dutton; Edwards; Farrar; Giddings; Hamilton; Leibowitz; Menendez; Olivo; Raymond; Rose; Solis; Thompson; Turner.

Present, not voting — Mr. Speaker; Alonzo; Anchia; Castro; Davis, Y.; Dunnam; Flores; Gonzalez Toureilles; Hilderbran; Jones, J.; Moreno, P.; Noriega, M.; Peña.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4011

Absent, Excused — Hodge.

Absent — Gallego; McClendon; Pickett; Smithee.

STATEMENTS OF VOTE

I was shown voting yes on Record No. 766. I intended to vote no.

Escobar

I was shown voting no on Record No. 766. I intended to vote present, not voting.

Farrar

When Record No. 766 was taken, I was in the house but away from my desk. I would have voted yes.

Gallego

I was shown voting yes on Record No. 766. I intended to vote no.

Guillen

I was shown voting no on Record No. 766. I intended to vote yes.

Hamilton

I was shown voting yes on Record No. 766. I intended to vote present, not voting.

Herrero

I was shown voting no on Record No. 766. I intended to vote present, not voting.

Leibowitz

I was shown voting yes on Record No. 766. I intended to vote present, not voting.

Martinez Fischer

I was shown voting no on Record No. 766. I intended to vote present, not voting.

Solis

I was shown voting no on Record No. 766. I intended to vote present, not voting.

Thompson

I was shown voting yes on Record No. 766. I intended to vote present, not voting.

Veasey

SB 1660 ON SECOND READING
(Hilderbran - House Sponsor)

SB 1660, A bill to be entitled An Act relating to the assumption of road district powers and duties by certain municipal utility districts; authorizing bonds.

4012 79th LEGISLATURE — REGULAR SESSION

SB 1660 was read second time on May 19 and was postponed until 9 a.m. today.

SB 1660 - POINT OF ORDER

Representative Miller raised a point of order against further consideration of SB 1660 under Rule 4, Sections 19 and 20(a)(2) and (3) of the House Rules.

The chair sustained the point of order.

The ruling precluded further consideration of SB 1660.

CSSB 1879 ON SECOND READING
(Puente - House Sponsor)

CSSB 1879, A bill to be entitled An Act relating to the creation of special districts for improvements in certain counties, including authority to acquire, construct, and improve water, wastewater, and drainage improvements; providing authority to impose a tax and issue bonds.

CSSB 1879 was read second time on May 22 and was postponed until 10ia.m. today.

(Vo in the chair)

Representative Puente moved to postpone consideration of CSSBi1879 until 12 p.m. tomorrow.

The motion prevailed.

HR 1839 - ADOPTED
(by Hilderbran)

Representative Hilderbran moved to suspend all necessary rules to take up and consider at this time HRi1839.

The motion prevailed.

The following resolution was laid before the house:

HR 1839, Congratulating the 2005 graduating class of the Ed Brune Charter School in Leakey and honoring the Hill Country Youth Ranch.

HR 1839 was adopted.

SB 335 ON THIRD READING
(Hartnett - House Sponsor)

SB 335, A bill to be entitled An Act relating to the recording of electronic documents.

SB 335 was read third time on May 17, postponed until May 18, postponed until May 19, and was again postponed until 10 a.m. today.

Amendment No. 1

Representative Isett offered the following amendment to SBi335:

Amend SB 335 (House Committee Printing) as follows:

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4013

(1) In SECTION 1 of the bill, added Section 15.006(b), Property Code, in added Subdivision 3 (page 4, line 15), strike "; and" and substitute ";".

(2) In SECTION 1 of the bill, added Section 15.006(b), Property Code, in added Subdivision (4) (page 4, line 17), strike the period and substitute "; and".

(2) In SECTION one of the bill, added Section 15.006(b), Property Code (page 4, between lines 17 and 18), immediately following subdivision 4, insert the following:

(5) standards to keep information private and protected from disclosure to unauthorized persons.

Representative Hartnett moved to table Amendment No. 1.

The motion to table prevailed.

SB 335 was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. No members registered their position on this measure.)

(Nixon in the chair)

SB 447 ON SECOND READING
(Madden - House Sponsor)

SB 447, A bill to be entitled An Act relating to the sale of tax receivables by a local government.

SB 447 was read second time on May 16, postponed until May 17, and was again postponed until 10 a.m. today.

Representative Madden moved to postpone consideration of SBi447 until 5:30 p.m. today.

The motion prevailed.

REMARKS ORDERED PRINTED

Representative Anchia moved to print closing remarks by Representative Y.iDavis on SB 1691.

The motion prevailed.

MAJOR STATE CALENDAR
SENATE BILLS
THIRD READING

The following bills were laid before the house and read third time:

SB 410 ON THIRD READING
(Truitt - House Sponsor)

SB 410, A bill to be entitled An Act relating to the continuation and functions of the Texas State Board of Pharmacy; providing administrative penalties.

4014 79th LEGISLATURE — REGULAR SESSION

Amendment No. 1

Representative Truitt offered the following amendment to SBi410:

Amend SB 410 on third reading by adding the following appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS of the bill accordingly:

SECTION . Subchapter A, Chapter 554, Occupations Code is amended by adding Section 554.016 to read as follows:

Sec. 554.016. PROTECTION OF HEALTH AND SAFETY IN DRUG IMPORTATION PROGRAM. Notwithstanding any other state law, the board shall protect public health and welfare by establishing a drug importation program that complies with all relevant federal and state prescription drug laws and regulations.

Representative Truitt moved to postpone consideration of SBi410 until 4:30ip.m. today.

The motion prevailed.

SB 411 ON THIRD READING
(Hamric - House Sponsor)

SB 411, A bill to be entitled An Act relating to the regulation of barbers and cosmetologists by the Texas Department of Licensing and Regulation and the abolition of the State Board of Barber Examiners and the Texas Cosmetology Commission.

Amendment No. 1

Representative Hamric offered the following amendment to SBi411:

Amend SB 411 on third reading as follows:

(1) In amended Section 1602.002, Occupations Code, between "COSMETOLOGY." and "In", insert "(a)".

(2) In amended Section 1602.002(2), Occupations Code, strike "[or braiding]" and substitute "or braiding".

(3) At the end of amended Section 1602.002, Occupations Code, insert the following:

(b) The commission by rule may amend the definition of cosmetology to eliminate a service included in that definition under Subsection (a).

Amendment No. 1 was adopted.

A record vote was requested.

SB 411, as amended, was passed by (Record 767): 141 Yeas, 0 Nays, 4 Present, not voting.

Yeas — Allen, A.; Allen, R.; Alonzo; Anchia; Anderson; Baxter; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Casteel; Castro; Chavez; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Escobar; Farabee; Farrar; Flores; Flynn; Frost; Gallego; Gattis; Geren; Giddings;

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4015

Present, not voting — Mr. Speaker; King, T.; Nixon(C); Peña.

Absent, Excused — Hodge.

Absent — Bailey; Goolsby; Jones, J.

STATEMENT OF VOTE

I was shown voting yes on Record No. 767. I intended to vote no.

Phillips

SB 408 ON THIRD READING
(P. King - House Sponsor)

SB 408, A bill to be entitled An Act relating to the continuation, administration, and operations of the Public Utility Commission of Texas.

Amendment No. 1

Representatives P. King and Dutton offered the following amendment to SBi408:

Amend SB 408 on third reading in Section 65.003(b), Utilities Code, as added by Amendment No. 16 by Dutton, by inserting the following between "provider" and "electing":

, other than a cable service provider serving fewer than 35 percent of the total cable customers in a municipality,

Amendment No. 1 was adopted.

SB 408, as amended, was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. Members registering votes are as follows: Berman recorded voting no.)

SB 409 ON THIRD READING
(P. King - House Sponsor)

SB 409, A bill to be entitled An Act relating to the continuation and functions of the Office of Public Utility Counsel.

4016 79th LEGISLATURE — REGULAR SESSION

Amendment No. 1

Representative P. King offered the following amendment to SBi409:

Amend SB 409 as follows:

In SECTION 2 of the bill, amend Sec. 13.003(a)(3) to read:

Section 13.003(a)(3) may initiate an action, appear, or intervene, as a party or otherwise, as a matter of right on behalf of:

Amendment No. 1 was withdrawn.

Amendment No. 2

Representatives Hilderbran, Hope, Otto, and Van Arsdale offered the following amendment to SBi409:

Amend SB 409 on third reading by adding the following appropriately numbered SECTIONS and renumbering subsequent SECTIONS accordingly:

SECTION . Section 5.273(a), Water Code, is amended to read as follows:

(a) The counsel shall represent the public interest and be a party to all proceedings before the commission, other than a proceeding under Chapter 13.

SECTION . Subchapter B, Chapter 13, Water Code, is amended by adding Section 13.017 to read as follows:

Sec. 13.017. OFFICE OF PUBLIC UTILITY COUNSEL. (a) In this section, "counselor" and "office" have the meanings assigned by Section 11.003, Utilities Code.

(b) The office may represent the interests of residential and small commercial consumers under this chapter. In representing residential and small commercial consumers under this chapter, the office has the same powers and duties in relation to water issues that the office has under Chapter 13, Utilities Code, in relation to electricity and telecommunications issues, including the powers and duties prescribed by Section 13.003, Utilities Code.

(c) This section does not limit the authority of the commission to represent residential or small commercial consumers.

(d) The appearance of the counselor in a proceeding does not preclude the appearance of other parties on behalf of residential or small commercial consumers. The counselor may not be grouped with any other party.

SECTION . (a) Not later than January 1, 2006, the following are transferred from the Office of Public Interest Counsel to the Office of Public Utility Counsel:

(1) the powers, duties, functions, programs, and activities of the Office of Public Interest Counsel relating to water and sewer services regulated under Chapter 13, Water Code;

(2) all obligations and contracts of the Office of Public Interest Counsel that are related to a power, duty, function, program, or activity transferred under this subsection; and

(3) all property and records in the custody of the Office of Public Interest Counsel 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.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4017

(b) A rule or form adopted by the Office of Public Interest Counsel that relates to a power, duty, function, program, or activity transferred under Subsection (a) of this section is a rule or form of the Office of Public Utility Counsel and remains in effect until altered by the Office of Public Utility Counsel.

(c) A reference in law to the Office of Public Interest Counsel that relates to a power, duty, function, program, or activity transferred under Subsection (a) of this section means the Office of Public Utility Counsel.

Amendment No. 2 was adopted.

SB 409, as amended, was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. No members registered their position on this measure.)

SB 743 ON THIRD READING
(P. King - House Sponsor)

SB 743, A bill to be entitled An Act relating to independent organizations in ERCOT and their regulation and certification by the Public Utility Commission of Texas; providing an administrative penalty.

Amendment No. 1

Representative P. King offered the following amendment to SBi743:

Amend SB 743 on third reading by adding the following new appropriately numbered SECTION and renumbering the remaining SECTIONS:

SECTION . Subsection (c), Section 39.051, Utilities Code, is amended as follows:

(c) An electric utility may accomplish the separation required by Subsection (b) either through the creation of separate nonaffiliated companies or separate affiliated companies owned by a common holding company or through the sale of assets to a third party. An electric utility may create separate transmission and distribution utilities. Notwithstanding any other provision of this Chapter, an electric utility that does not have stranded costs described by Section 39.254 and that on September 1, 2005 has not finalized unbundling pursuant to a commission order approving an unbundling plan may also meet the requirements of Subsection (b) for generation facilities existing on September 1, 2005 in the Electric Reliability Council of Texas if it meets and maintains compliance with the following requirements:

(1) the electric utility has no more than 400 megawatts of Texas jurisdictional capacity from generating units within the Electric Reliability Council of Texas that have not been mothballed or retired;

(2) the electric utility has a contract or contracts with separate nonaffiliated companies or separate affiliated companies for the sale of all of the output from its generating units that have not been mothballed or retired with a contract term that is no shorter than twenty years or the life of the generating units, whichever is shorter; and

4018 79th LEGISLATURE — REGULAR SESSION

(3) the electric utility has a separate division within the electric utility for its generation business activities.

(c-1) A separate division described by Subsection (c)(3) is subject to subsection (d) and, for the purposes of this Chapter, is considered a separate affiliated power generation company and a competitive affiliate.

Amendment No. 1 was withdrawn.

Amendment No. 2

Representative P. King offered the following amendment to SBi743:

Amend Floor Amendment No. 1 to SBi743 by adding the following sentence after the word "2017." on Page 2, Line 30 as follows:

"The costs of any renewable energy credits acquired by an electric utility in accordance with commission rules implemented to achieve the intent of this section shall be treated as eligible fuel expense and recovered by the utility as fuel costs."

Amendment No. 2 was withdrawn.

Amendment No. 3

Representatives Hunter and Swinford offered the following amendment to SBi743:

Amend SB 743 on third reading by striking the section of the bill amending Section 39.904, Utilities Code, as added on second reading by Amendment No. 1 by Hunter amendment and by Amendment No. 2 Swinford amendment and substituting:

SECTION . Section 39.904, Utilities Code, is amended by amending Subsections (a) and (d) and adding Subsections (a-1) and (g)-(o) to read as follows:

(a) It is the intent of the legislature that by January 1, 2017 [2009], an additional 7,000 [2,000] megawatts of generating capacity from renewable energy technologies will have been installed in this state. The cumulative installed renewable capacity in this state shall total 7,880 [1,280] megawatts by January 1, 2017. The cumulative installed renewable capacity in this state shall total 3,113 megawatts by January 1, 2007, 3,946 megawatts by January 1, 2009, 4,779 megawatts by January 1, 2011, 5,612 megawatts by January 1, 2013, 6,445 megawatts by January 1, 2015, and 7,880 megawatts by January 1, 2017 [2003, 1,730 megawatts by January 1, 2005, 2,280 megawatts by January 1, 2007, and 2,880 megawatts by January 1, 2009].

(a-1) The commission shall establish a target of 10,000 megawatts of installed renewable capacity by January 1, 2025. The commission shall also establish a target of 500 megawatts of generating capacity from non-wind renewable technologies or emerging ultra-clean distributed generation technologies including generation from industrial waste heat and fuel cells, installed in this state after September 1, 2005. Non-renewable utlra-clean

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4019

(d) In this section, "renewable energy technology" means any technology that exclusively relies on an energy source that is naturally regenerated over a short time and derived directly from the sun, indirectly from the sun, or from moving water or other natural movements and mechanisms of the environment. Renewable energy technologies include those that rely on energy derived directly from the sun, on wind, geothermal, hydroelectric, wave, or tidal energy, [or] on biomass or biomass-based waste products, including landfill gas, or on gasification of municipal solid waste. In this subsection, "municipal solid waste" means nondurable goods, containers, packaging, food wastes, yard trimmings, and miscellaneous organic wastes from residential, commercial, and industrial nonprocess sources. A renewable energy technology, other the gasification of municipal solid waste, does not rely on energy resources derived from fossil fuels, waste products from fossil fuels, or waste products from inorganic sources.

(g) The commission, after consultation with each appropriate independent organization, electric reliability council, or regional transmission organization:

(1) shall designate competitive renewable energy zones throughout this state in areas in which renewable energy resources and suitable land areas are sufficient to develop generating capacity from renewable energy technologies;

(2) shall develop a plan to construct transmission capacity necessary to deliver to electric customers, in a manner that is most beneficial and cost-effective to the customers, the electric output from renewable energy technologies in the competitive renewable energy zones; and

(3) shall consider the level of financial commitment by generators for each competitive renewable energy zone in determining whether to designate an area as a competitive renewable energy zone and whether to grant a certificate of convenience and necessity.

(h) In considering an application for a certificate of convenience and necessity for a transmission project intended to serve a competitive renewable energy zone, the commission is not required to consider the factors provided by Sections 37.056(c)(1) and (2).

(i) Transmission service to a competitive renewable energy zone must be provided in a manner consistent with Subchapter A, Chapter 35.

(j) The commission, after consultation with the comptroller, the Texas Commission on Environmental Quality, the State Energy Conservation Office, the Office of Rural Community Affairs, and each appropriate independent organization, electric reliability council, or regional transmission organization, shall file a report with the legislature not later than December 31 of each even-numbered year. The report must include:

(1) an evaluation of the commission's implementation of competitive renewable energy zones;

(2) the estimated cost of transmission service improvements needed for each competitive renewable energy zone;

4020 79th LEGISLATURE — REGULAR SESSION

(3) an evaluation of the effects that additional renewable generation has on system reliability and on the cost of alternatives to mitigate the effects;

(4) an assessment of the net impact of renewable energy generation on statewide fuel use, fuel cost savings, and wholesale energy costs; and

(5) an assessment of the economic development and tax revenue impacts of historical and additional renewable energy generation.

(k) The commission and the independent organization certified for ERCOT shall study the need for increased transmission and generation capacity throughout this state and report to the legislature the results of the study and any recommendations for legislation. The report must be filed with the legislature not later than December 31 of each even-numbered year and may be filed as a part of the report required by Subsection (j).

(1) The commission may adopt rules requiring renewable power facilities to have reactive power control capabilities or any other feasible technology designed to reduce the facilities' effects on system reliability.

(m) Notwithstanding any other provision of law, the commission shall ensure that all renewable capacity installed in this state and all renewable energy credits awarded, produced, procured, or sold in this state are counted toward the goal in Subsection (a).

(n) Notwithstanding any other provision of law, the commission may cap the price of renewable energy credits and may suspend the goal contained in Subsection (a) if that suspension is necessary to protect the reliability and operation of the grid.

(o) The commission, after consultation with the comptroller, the Texas Commission on Environmental Quality, the State Energy Conservation Office, the Office of Rural Community Affairs, and with each appropriate independent organization, electric reliability council, or regional transmission organization, shall file a report with the legislature not later than December 31, 2006, detailing the costs and benefits of additional renewable energy use in this state. The report must include the projected net effects throughout this state on fuel costs, transmission costs, wholesale energy costs, environmental impacts, tax revenues, and economic development of achieving renewable energy use of up to 10 percent of electric energy consumption in this state on or before January 1, 2020.

Amendment No. 3 was adopted.

Amendment No. 4

Representative Flores offered the following amendment to SBi743:

Amend SB 743 by inserting the following appropriately numbered new SECTION in the bill and renumbering the subsequent SECTIONS accordingly:

"SECTION . Before implementing a new wholesale transmission and distribution market design, the Public Utility Commission of Texas shall provide to the Senate Committee on business and Commerce and the House Committee on Regulated Industries a report that contains:

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4021

(1) an executive summary and detailed description of the changes in the wholesale transmission and distribution market that the commission has ordered, including the effect the new market design is anticipated to have on local congestions costs:

(2) a list of entities, associations and groups that have submitted comments to the commission on the new market design, classified by whether the comments indicated support for or opposition to the new market design:

(3) a comparison of the new market design to any similar market design adopted in any other state:

(4) a time line for the implementation of the new market design, including estimated costs of implementation;

(5) the estimated increases in wholesale and retail electricity prices that will be caused in each county in this state by the new market design, projected over the first five years after the date the new design will be implemented; and

(6) the names, business addresses, and the telephone number of the Texas Nodal Team and any other quasi-official working group that recommends to the commission the adoption of the new market design."

Amendment No. 4 was adopted.

Amendment No. 5

Representative P. King offered the following amendment to SBi743:

Amend SB 743 on third reading by adding the following new appropriately numbered SECTION and renumbering the remaining SECTIONS:

SECTION . Subsection (c), Section 39.051, Utilities Code, is amended as follows:

(c) An electric utility may accomplish the separation required by Subsection (b) either through the creation of separate nonaffiliated companies or separate affiliated companies owned by a common holding company or through the sale of assets to a third party. An electric utility may create separate transmission and distribution utilities. Notwithstanding any other provision of this Chapter, an electric utility that does not have stranded costs described by Section 39.254 and that on September 1, 2005 has not finalized unbundling pursuant to a commission order approving an unbundling plan may also meet the requirements of Subsection (b) for generation facilities existing on September 1, 2005 in the Electric Reliability Council of Texas if it meets and maintains compliance with the following requirements:

(1) the electric utility has no more than 400 megawatts of Texas jurisdictional capacity from generating units within the Electric Reliability Council of Texas that have not been mothballed or retired;

(2) the electric utility has a contract or contracts with separate nonaffiliated companies or separate affiliated companies for the sale of all of the output from its generating units that have not been mothballed or retired with a contract term that is no shorter than twenty years or the life of the generating units, whichever is shorter; and

(3) the electric utility has a separate division within the electric utility for its generation business activities.

4022 79th LEGISLATURE — REGULAR SESSION

(c-1) A separate division described by Subsection (c)(3) is subject to subsection (d) and, for the purposes of this Chapter, is considered a separate affiliated power generation company and a competitive affiliate.

Amendment No. 5 was adopted.

PROVIDING FOR A LOCAL, CONSENT,

AND RESOLUTIONS CALENDAR

Representative Reyna moved to set a local, consent, and resolutions calendar for 7 p.m. Wednesday, May 25.

The motion prevailed.

COMMITTEE GRANTED PERMISSION TO MEET

Representative Reyna requested permission for the Committee on Local and Consent Calendars to meet while the house is in session at 4:15 p.m. today, in 3W.9, for a formal meeting, to consider the calendar.

Permission to meet was granted.

COMMITTEE MEETING ANNOUNCEMENT

The following committee meeting was announced:

Local and Consent Calendars, 4:15 p.m. today, 3W.9, for a formal meeting, to consider the calendar.

MESSAGE FROM THE SENATE

A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 2).

SB 743 - (consideration continued)

SB 743, as amended, was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. Members registering votes are as follows: Hartnett recorded voting no.)

SB 1830 ON THIRD READING
(Luna - House Sponsor)

SB 1830, A bill to be entitled An Act relating to the continuation of the quality assurance fee applicable to intermediate care facilities for persons with mental retardation.

SBi1830 was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. No members registered their position on this measure.)

SB 1378 ON THIRD READING
(Woolley - House Sponsor)

SB 1378, A bill to be entitled An Act relating to the certification of certain nonprofit hospitals and hospital systems for limited liability.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4023

A record vote was requested.

SBi1378 was passed by (Record 768): 143 Yeas, 0 Nays, 2 Present, not voting.

Yeas — Allen, A.; Allen, R.; Alonzo; Anchia; Bailey; Baxter; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Casteel; Castro; Chavez; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Escobar; Farabee; Farrar; Flores; Flynn; Frost; Gallego; Gattis; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Herrero; Hilderbran; Hill; Hochberg; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jackson; Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Kuempel; Laney; Laubenberg; Leibowitz; Luna; Madden; Martinez; Martinez Fischer; McCall; McReynolds; Menendez; Merritt; Miller; Moreno, P.; Morrison; Mowery; Naishtat; Noriega, M.; Oliveira; Olivo; Orr; Otto; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Strama; Straus; Swinford; Talton; Taylor; Thompson; Truitt; Turner; Uresti; Van Arsdale; Veasey; Villarreal; Vo; West; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Nixon(C).

Absent, Excused — Hodge.

Absent — Anderson; Krusee; McClendon.

STATEMENT OF VOTE

When Record No. 768 was taken, I was in the house but away from my desk. I would have voted yes.

Anderson

SB 1176 ON THIRD READING
(Eiland - House Sponsor)

SB 1176, A bill to be entitled An Act relating to systems and programs administered by the Employees Retirement System of Texas.

Amendment No. 1

Representative Eiland offered the following amendment to SBi1176:

Amend SB 1176 as follows:

1). In SECTION 34 add a new subsection (5) to read as follows: "(5) Section 814.1042" and renumber subsequent subsections appropriately.

2). In SECTION 35, Subsection (b), insert the following between "Insurance Code," and "as added by this Act": "and the repeal of Section 814.1042, Government Code".

Amendment No. 1 was adopted.

4024 79th LEGISLATURE — REGULAR SESSION

Representative Eiland moved to postpone consideration of SBi1176 until 4:25 p.m. today.

The motion prevailed.

SB 11 ON THIRD READING
(Delisi - House Sponsor)

SB 11, A bill to be entitled An Act relating to security in public schools.

Amendment No. 1

Representative Olivo offered the following amendment to SBi11:

Amend SB 11 on third reading as follows:

(1) In the recital to SECTION 1 of the bill, strike "Section 37.108" and substitute "Section 37.108 and 37.1085".

(2) In SECTION 1 of the bill, at the end of added Section 37.108, Education Code, insert the following:

Sec. 37.1085. ADDITIONAL TRAINING. (a) A school district that employs a school district peace officer under Section 37.081, may require each officer to attend a security training program for school resource officers and school district peace officers.

(b) The training program must use a curriculum that incorporates learning objectives approved by the commissioner and developed jointly by the Bill Blackwood Law Enforcement Management Institute of Texas at Sam Houston State University and the Texas School Safety Center at Texas State University regarding:

(1) multihazard emergency operations plans;

(2) security audits;

(3) safety training programs; and

(4) discipline management practices or behavior management practices that are consistent with Section 37.0021, Education Code, and the procedures adopted under that section.

(c) The training program curriculum must provide information on the areas related to school security described in Subsection (b) and should distinguish between appropriate safety and discipline management practices or behavior management practices to be applied by a school resource officer or school district peace officer who has been authorized to carry a weapon under Section 37.081, Education Code, and those practices to be applied by a school resource officer or school district peace officer who is not authorized to carry a weapon.

(3) Add the following appropriately numbered SECTION to the bill and renumber subsequent SECTIONS accordingly:

SECTION . The Bill Blackwood Law Enforcement Management Institute of Texas and the Texas School Safety Center shall develop the curriculum for the training program required under Section 37.1085, Education Code, as added by this Act, not later than January 1, 2006.

Amendment No. 1 was adopted.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4025

SB 11, as amended, was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. Members registering votes are as follows: A. Allen, Kolkhorst, and Leibowitz recorded voting no.)

SB 1458 ON THIRD READING
(Corte - House Sponsor)

SB 1458, A bill to be entitled An Act relating to the adoption of a uniform commercial building code for use in municipalities in the state.

SBi1458 was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. Members registering votes are as follows: A. Allen, Herrero, and Leibowitz recorded voting no.) (The vote was reconsidered later today, and SB 1458 was amended and was passed.)

SB 872 ON THIRD READING
(Delisi - House Sponsor)

SB 872, A bill to be entitled An Act relating to a study regarding the impact of niche hospitals on other general hospitals and to certain reports and disclosure requirements regarding niche hospitals.

Amendment No. 1

Representative Truitt offered the following amendment to SBi872:

Amend SB 872 on third reading by adding appropriately numbered sections to the bill to read as follows and renumbering the other sections of the bill accordingly:

SECTIONi__.iiSubtitle D, Title 2, Health and Safety Code, is amended by adding Chapter 96 to read as follows:

CHAPTER 96. HEALTH CARE ASSOCIATED INFECTION RATE

AND PROCESS MEASURE REPORTING

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i96.001.iiDEFINITIONS. (a)iiIn this chapter:

(1)ii"Advisory panel" means the Advisory Panel on Health Care Associated Infections.

(2)ii"Commissioner" means the commissioner of state health services.

(3)ii"Department" means the Department of State Health Services.

(4)ii"Health care associated infection" means a localized or symptomatic condition resulting from an adverse reaction to an infectious agent or its toxins to which a patient is exposed in the course of health care delivery.

(5)ii"Health care facility" means a hospital licensed under Chapter 241 or an ambulatory surgical center licensed under Chapter 243.

(6)ii"Infection rate" means the number of health care associated infections at a health care facility divided by a numerical measure over time of the population at risk for contracting the infection.

(7)ii"Process measure" means a measure of a health care facility's compliance with recommended infection control practices.

4026 79th LEGISLATURE — REGULAR SESSION

(b)iiThe advisory panel may modify or define the term "infection rate" as necessary to accomplish the purposes of this chapter.

Sec.i96.002.iiAPPLICABILITY OF OTHER LAW. Chapter 2110, Government Code, does not apply to the advisory panel created under Subchapter B.

Sec.i96.003.iiEXPIRATION. This chapter expires January 1, 2007.

[Sections 96.004-96.050 reserved for expansion]

SUBCHAPTER B. ADVISORY PANEL ON

HEALTH CARE ASSOCIATED INFECTIONS

Sec.i96.051.iiESTABLISHMENT. The commissioner shall establish the Advisory Panel on Health Care Associated Infections within the regulatory licensing unit of the health care quality section of the department.

Sec.i96.052.iiMEMBERSHIP. The advisory panel is composed of 14 members as follows:

(1)iitwo infection control practitioner members who:

(A)iiare certified by the Certification Board of Infection Control and Epidemiology; and

(B)iiare practicing in hospitals in this state, at least one of which must be a rural hospital;

(2)iitwo infection control practitioner members who:

(A)iiare certified by the Certification Board of Infection Control and Epidemiology; and

(B)iiare nurses licensed to engage in professional nursing under Chapter 301, Occupations Code;

(3)iithree board-certified or board-eligible physician members who:

(A)iiare licensed to practice medicine in this state under Chapter 155, Occupations Code, at least two of whom have active medical staff privileges at a hospital in this state;

(B)iiare active members of the Society for Healthcare Epidemiology of America; and

(C)iihave demonstrated expertise in infection control in health care facilities;

(4)iione member who is a chief executive officer of a hospital licensed under Chapter 241;

(5)iione member who is a chief executive officer of an ambulatory surgical center licensed under Chapter 243;

(6)iithree members who:

(A)iiare department employees representing the department in epidemiology and the licensing of hospitals or ambulatory surgical centers; and

(B)iiserve as nonvoting members of the advisory panel; and

(7)iitwo members who represent the public as consumers.

Sec.i96.053.iiMEMBER ELIGIBILITY. A person may not be a member of the advisory panel if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to health care.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4027

Sec.i96.054.iiOFFICERS. The members of the advisory panel shall elect a presiding officer and an assistant presiding officer from among the members.

Sec.i96.055.iiCOMPENSATION; EXPENSES. (a) Except as provided by Subsection (b), a member of the advisory panel is not entitled to compensation for service on the advisory panel and is not entitled to reimbursement for travel expenses.

(b)iiA member who is a representative of a state agency shall be reimbursed for travel expenses incurred while conducting the business of the advisory panel from the funds of the agency the person represents in accordance with the General Appropriations Act.

Sec.i96.056.iiVACANCY. A vacancy on the advisory panel shall be filled by the commissioner.

Sec.i96.057.iiABOLISHED. The Advisory Panel on Health Care Associated Infections is abolished January 1, 2007.

[Sections 96.058-96.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF ADVISORY PANEL

Sec.i96.101.iiGENERAL POWERS AND DUTIES. (a) The advisory panel, using nationally accepted measures, shall study and recommend definitions and methodologies for collecting and reporting evidence-based data on:

(1)iiinfection rates;

(2)iiprocess measures; or

(3)iiboth infection rates and process measures.

(b)iiIn developing the recommendations described in Subsection (a), the advisory panel shall consider:

(1)iiadjusting the reported infection rates to account for the differences in patient populations and for factors outside the control of the health care facility;

(2)iistandardizing data collection methodology and reporting;

(3)iireviewing data collection and reporting systems of other entities related to infection rates, such as the National Nosocomial Infections Surveillance System of the federal Centers for Disease Control and Prevention;

(4)iireviewing data collection and reporting systems of other entities related to process measures, such as the Joint Commission on Accreditation of Healthcare Organizations or the Centers for Medicare and Medicaid Services;

(5)iimaximizing the efficient use of the resources required for health care facilities to conduct required surveillance and reporting;

(6)iirecognizing the potential unintended consequences of public reporting that is poorly designed or executed and that may diminish the overall quality of this state's health care or mislead or fail to protect health care consumers who use the data; and

(7)iiproviding additional benefits to health care consumers.

Sec.i96.102.iiREPORT TO LEGISLATURE. (a) Not later than November 1, 2006, the commissioner shall file a report with the presiding officer of each house of the legislature on the advisory panel's recommendations for legislation regarding the collection and reporting of infection rates, process measures, or both.

4028 79th LEGISLATURE — REGULAR SESSION

(b)iiThe report shall include a recommendation that the legislation set September 1, 2007, as the date for hospitals and ambulatory surgical centers to comply with the legislation.

SECTIONi__.iiAs soon as practicable after the effective date of this Act, the commissioner of the Department of State Health Services shall appoint members to the Advisory Panel on Health Care Associated Infections as required by Chapter 96, Health and Safety Code, as added by this Act.

Amendment No. 1 was withdrawn.

HR 2067 - ADOPTED
(by Thompson)

Representative Thompson moved to suspend all necessary rules to take up and consider at this time HRi2067.

The motion prevailed.

The following resolution was laid before the house:

HR 2067, Recognizing and congratulating Mr. Lurendran Hubbard on his scholastic and athletic accomplishments.

HR 2067 was adopted.

SB 872 - (consideration continued)

Amendment No. 2

Representatives Y. Davis, Delisi, McReynolds, and Truitt offered the following amendment to SBi872:

Amend SB 872 on third reading by adding appropriately numbered sections to the bill to read as follows and renumbering the other sections of the bill accordingly:

SECTIONi__.iiSubtitle D, Title 2, Health and Safety Code, is amended by adding Chapter 96 to read as follows:

CHAPTER 96. HEALTH CARE ASSOCIATED INFECTION RATE

AND PROCESS MEASURE REPORTING

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i96.001.iiDEFINITIONS. (a)iiIn this chapter:

(1)ii"Advisory panel" means the Advisory Panel on Health Care Associated Infections.

(2)ii"Commissioner" means the commissioner of state health services.

(3)ii"Department" means the Department of State Health Services.

(4)ii"Health care associated infection" means a localized or symptomatic condition resulting from an adverse reaction to an infectious agent or its toxins to which a patient is exposed in the course of health care delivery.

(5)ii"Health care facility" means a hospital licensed under Chapter 241 or an ambulatory surgical center licensed under Chapter 243.

(6)ii"Infection rate" means the number of health care associated infections at a health care facility divided by a numerical measure over time of the population at risk for contracting the infection.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4029

(7)ii"Process measure" means a measure of a health care facility's compliance with recommended infection control practices.

(b)iiThe advisory panel may modify or define the term "infection rate" as necessary to accomplish the purposes of this chapter.

Sec.i96.002.iiAPPLICABILITY OF OTHER LAW. Chapter 2110, Government Code, does not apply to the advisory panel created under Subchapter B.

Sec.i96.003.iiEXPIRATION. This chapter expires January 1, 2007.

[Sections 96.004-96.050 reserved for expansion]

SUBCHAPTER B. ADVISORY PANEL ON

HEALTH CARE ASSOCIATED INFECTIONS

Sec.i96.051.iiESTABLISHMENT. The commissioner shall establish the Advisory Panel on Health Care Associated Infections within the regulatory licensing unit of the health care quality section of the department.

Sec.i96.052.iiMEMBERSHIP. The advisory panel is composed of 14 members as follows:

(1)iitwo infection control practitioner members who:

(A)iiare certified by the Certification Board of Infection Control and Epidemiology; and

(B)iiare practicing in hospitals in this state, at least one of which must be a rural hospital;

(2)iitwo infection control practitioner members who:

(A)iiare certified by the Certification Board of Infection Control and Epidemiology; and

(B)iiare nurses licensed to engage in professional nursing under Chapter 301, Occupations Code;

(3)iithree board-certified or board-eligible physician members who:

(A)iiare licensed to practice medicine in this state under Chapter 155, Occupations Code, at least two of whom have active medical staff privileges at a hospital in this state;

(B)iiare active members of the Society for Healthcare Epidemiology of America; and

(C)iihave demonstrated expertise in infection control in health care facilities;

(4)iione member who is a chief executive officer of a hospital licensed under Chapter 241;

(5)iione member who is a chief executive officer of an ambulatory surgical center licensed under Chapter 243;

(6)iithree members who:

(A)iiare department employees representing the department in epidemiology and the licensing of hospitals or ambulatory surgical centers; and

(B)iiserve as nonvoting members of the advisory panel; and

(7)iitwo members who represent the public as consumers.

4030 79th LEGISLATURE — REGULAR SESSION

Sec.i96.053.iiMEMBER ELIGIBILITY. A person may not be a member of the advisory panel if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to health care.

Sec.i96.054.iiOFFICERS. The members of the advisory panel shall elect a presiding officer and an assistant presiding officer from among the members.

Sec.i96.055.iiCOMPENSATION; EXPENSES. (a) Except as provided by Subsection (b), a member of the advisory panel is not entitled to compensation for service on the advisory panel and is not entitled to reimbursement for travel expenses.

(b)iiA member who is a representative of a state agency shall be reimbursed for travel expenses incurred while conducting the business of the advisory panel from the funds of the agency the person represents in accordance with the General Appropriations Act.

Sec.i96.056.iiVACANCY. A vacancy on the advisory panel shall be filled by the commissioner.

Sec.i96.057.iiABOLISHED. The Advisory Panel on Health Care Associated Infections is abolished January 1, 2007.

[Sections 96.058-96.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF ADVISORY PANEL

Sec.i96.101.iiGENERAL POWERS AND DUTIES. (a) The advisory panel, using nationally accepted measures, shall study and recommend definitions and methodologies for collecting and reporting evidence-based data on:

(1)iiinfection rates;

(2)iiprocess measures; or

(3)iiboth infection rates and process measures.

(b)iiIn developing the recommendations described in Subsection (a), the advisory panel shall consider:

(1)iiadjusting the reported infection rates to account for the differences in patient populations and for factors outside the control of the health care facility;

(2)iistandardizing data collection methodology and reporting;

(3)iireviewing data collection and reporting systems of other entities related to infection rates, such as the National Nosocomial Infections Surveillance System of the federal Centers for Disease Control and Prevention;

(4)iireviewing data collection and reporting systems of other entities related to process measures, such as the Joint Commission on Accreditation of Healthcare Organizations or the Centers for Medicare and Medicaid Services;

(5)iimaximizing the efficient use of the resources required for health care facilities to conduct required surveillance and reporting;

(6)iirecognizing the potential unintended consequences of public reporting that is poorly designed or executed and that may diminish the overall quality of this state's health care or mislead or fail to protect health care consumers who use the data; and

(7)iiproviding additional benefits to health care consumers.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4031

Sec.i96.102.iiREPORT TO LEGISLATURE. (a) Not later than November 1, 2006, the commissioner shall file a report with the presiding officer of each house of the legislature on the advisory panel's recommendations for legislation regarding the collection and reporting of infection rates, process measures, or both.

(b)iiThe report shall include a recommendation that the legislation set September 1, 2007, as the date for hospitals and ambulatory surgical centers to comply with the legislation.

(c) Nothing shall preclude the reporting of deaths from infection by hospitals and niche hospitals as included in this legislation.

SECTIONi__.iiAs soon as practicable after the effective date of this Act, the commissioner of the Department of State Health Services shall appoint members to the Advisory Panel on Health Care Associated Infections as required by Chapter 96, Health and Safety Code, as added by this Act.

Representative Truitt moved to postpone consideration of SBi872 until 4:50ip.m. today.

The motion prevailed.

POSTPONED BUSINESS

The following bills were laid before the house as postponed business:

SB 1176 ON THIRD READING
(Eiland - House Sponsor)

SB 1176, A bill to be entitled An Act relating to systems and programs administered by the Employees Retirement System of Texas.

SB 1176 was read third time earlier today, was amended, and was postponed until this time.

Amendment No. 2

Representative McClendon offered the following amendment to SBi1176:

Amend SB 1176 by adding the following appropriately numbered SECTIONS and renumbering subsequent SECTIONS of the bill accordingly:

SECTION __. Section 815.003, Government Code, is amended by amending Subsections (a) and (b) and adding Subsection (b-1) to read as follows:

(a) Three members of the board of trustees are nominated and elected by members of the retirement system and retirees under rules adopted by the board. Two of the trustees must meet the eligibility requirements specified in Subsection (b) and one trustee must meet the eligibility requirements specified in Subsection (b-1).

(b) To be eligible to serve as an elected member of the board, two of the elected trustees [a person] must be members [a member] of the retirement system and must hold a position that:

(1) is included in the employee class of membership; and

(2) is not with an agency or department with which another trustee holds a position.

4032 79th LEGISLATURE — REGULAR SESSION

(b-1) To be eligible to serve as an elected member of the board, one of the trustees must be a retiree.

SECTION __. At the trustee election held by the Employees Retirement System of Texas to fill a position on the board of trustees that expires August 31, 2007, the members and retirees of the retirement system shall elect a trustee who meets the eligibility requirements of Section 815.003 (b-1), Government Code, as added by this Act.

Amendment No. 2 was adopted.

Amendment No. 3

Representatives Eiland and McClendon offered the following amendment to SBi1176:

Amend SB 1176 by adding the following appropriately numbered SECTION to the bill and renumbering subsequent SECTIONS of the bill accordingly:

SECTION __. The Employees Retirement System of Texas shall recompute the annuities of all persons who retired or received a death benefit annuity from the Judicial Retirement System of Texas Plan One or the Judicial Retirement System of Texas Plan Two before January 1, 2002, as if the changes in law made by Chapter 1240, Acts of the 77th Legislature, Regular Session, 2001, to Subsection (b), Section 834.102, and Subsection (b), Section 839.102, Government Code, had been in effect on the date of the person's retirement or death. The first payment of any annuity increased under this section becomes payable with the first payment due on or after the effective date of this Act.

Amendment No. 3 was adopted.

SB 1176, as amended, was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. No members registered their position on this measure.)

SB 410 ON THIRD READING
(Truitt - House Sponsor)

SB 410, A bill to be entitled An Act relating to the continuation and functions of the Texas State Board of Pharmacy; providing administrative penalties.

SB 410 was read third time earlier today, an amendment was offered, and was postponed until this time.

Amendment No. 1 was pending at the time of postponement.

Amendment No. 1 was withdrawn.

A record vote was requested.

SB 410 was passed by (Record 769): 141 Yeas, 0 Nays, 2 Present, not voting.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4033

Yeas — Allen, A.; Allen, R.; Alonzo; Anchia; Anderson; Bailey; Baxter; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Casteel; Castro; Chavez; Chisum; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Escobar; Farabee; Farrar; Flores; Flynn; Frost; Gallego; Gattis; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Herrero; Hilderbran; Hill; Hochberg; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jackson; Jones, J.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Kuempel; Laney; Laubenberg; Leibowitz; Luna; Madden; Martinez; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Merritt; Miller; Moreno, P.; Morrison; Mowery; Noriega, M.; Oliveira; Olivo; Orr; Otto; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Strama; Straus; Swinford; Talton; Taylor; Thompson; Truitt; Turner; Uresti; Van Arsdale; Veasey; Villarreal; Vo; West; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Nixon(C).

Absent, Excused — Hodge.

Absent — Coleman; Jones, D.; Krusee; Naishtat; Rodriguez.

STATEMENT OF VOTE

When Record No. 769 was taken, I was in the house but away from my desk. I would have voted yes.

Naishtat

SB 872 ON THIRD READING
(Delisi - House Sponsor)

SB 872, A bill to be entitled An Act relating to a study regarding the impact of niche hospitals on other general hospitals and to certain reports and disclosure requirements regarding niche hospitals.

SB 872 was read third time earlier today, amendments were offered, and was postponed until this time.

Amendment No. 2 was pending at the time of postponement.

Amendment No. 2 was withdrawn.

Amendment No. 3

Representatives Y. Davis, Delisi, McReynolds, and Truitt offered the following amendment to SBi872:

Amend SB 872 on third reading by adding appropriately numbered sections to the bill to read as follows and renumbering the other sections of the bill accordingly:

SECTIONi__.iiSubtitle D, Title 2, Health and Safety Code, is amended by adding Chapter 96 to read as follows:

4034 79th LEGISLATURE — REGULAR SESSION

CHAPTER 96. HEALTH CARE ASSOCIATED INFECTION RATE

AND PROCESS MEASURE REPORTING

SUBCHAPTER A. GENERAL PROVISIONS

Sec.i96.001.iiDEFINITIONS. (a)iiIn this chapter:

(1)ii"Advisory panel" means the Advisory Panel on Health Care Associated Infections.

(2)ii"Commissioner" means the commissioner of state health services.

(3)ii"Department" means the Department of State Health Services.

(4)ii"Health care associated infection" means a localized or symptomatic condition resulting from an adverse reaction to an infectious agent or its toxins to which a patient is exposed in the course of health care delivery.

(5)ii"Health care facility" means a hospital licensed under Chapter 241 or an ambulatory surgical center licensed under Chapter 243.

(6)ii"Infection rate" means the number of health care associated infections at a health care facility divided by a numerical measure over time of the population at risk for contracting the infection.

(7)ii"Process measure" means a measure of a health care facility's compliance with recommended infection control practices.

(b)iiThe advisory panel may modify or define the term "infection rate" as necessary to accomplish the purposes of this chapter.

Sec.i96.002.iiAPPLICABILITY OF OTHER LAW. Chapter 2110, Government Code, does not apply to the advisory panel created under Subchapter B.

Sec.i96.003.iiEXPIRATION. This chapter expires January 1, 2007.

[Sections 96.004-96.050 reserved for expansion]

SUBCHAPTER B. ADVISORY PANEL ON

HEALTH CARE ASSOCIATED INFECTIONS

Sec.i96.051.iiESTABLISHMENT. The commissioner shall establish the Advisory Panel on Health Care Associated Infections within the regulatory licensing unit of the health care quality section of the department.

Sec.i96.052.iiMEMBERSHIP. The advisory panel is composed of 14 members as follows:

(1)iitwo infection control practitioner members who:

(A)iiare certified by the Certification Board of Infection Control and Epidemiology; and

(B)iiare practicing in hospitals in this state, at least one of which must be a rural hospital;

(2)iitwo infection control practitioner members who:

(A)iiare certified by the Certification Board of Infection Control and Epidemiology; and

(B)iiare nurses licensed to engage in professional nursing under Chapter 301, Occupations Code;

(3)iithree board-certified or board-eligible physician members who:

(A)iiare licensed to practice medicine in this state under Chapter 155, Occupations Code, at least two of whom have active medical staff privileges at a hospital in this state;

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4035

(B)iiare active members of the Society for Healthcare Epidemiology of America; and

(C)iihave demonstrated expertise in infection control in health care facilities;

(4)iione member who is a chief executive officer of a hospital licensed under Chapter 241;

(5)iione member who is a chief executive officer of an ambulatory surgical center licensed under Chapter 243;

(6)iithree members who:

(A)iiare department employees representing the department in epidemiology and the licensing of hospitals or ambulatory surgical centers; and

(B)iiserve as nonvoting members of the advisory panel; and

(7)iitwo members who represent the public as consumers.

Sec.i96.053.iiMEMBER ELIGIBILITY. A person may not be a member of the advisory panel if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to health care.

Sec.i96.054.iiOFFICERS. The members of the advisory panel shall elect a presiding officer and an assistant presiding officer from among the members.

Sec.i96.055.iiCOMPENSATION; EXPENSES. (a) Except as provided by Subsection (b), a member of the advisory panel is not entitled to compensation for service on the advisory panel and is not entitled to reimbursement for travel expenses.

(b)iiA member who is a representative of a state agency shall be reimbursed for travel expenses incurred while conducting the business of the advisory panel from the funds of the agency the person represents in accordance with the General Appropriations Act.

Sec.i96.056.iiVACANCY. A vacancy on the advisory panel shall be filled by the commissioner.

Sec.i96.057.iiABOLISHED. The Advisory Panel on Health Care Associated Infections is abolished January 1, 2007.

[Sections 96.058-96.100 reserved for expansion]

SUBCHAPTER C. POWERS AND DUTIES OF ADVISORY PANEL

Sec.i96.101.iiGENERAL POWERS AND DUTIES. (a) The advisory panel, using nationally accepted measures, shall study and recommend definitions and methodologies for collecting and reporting evidence-based data on:

(1)iiinfection rates;

(2)iiprocess measures; or

(3)iiboth infection rates and process measures.

(b)iiIn developing the recommendations described in Subsection (a), the advisory panel shall consider:

(1)iiadjusting the reported infection rates to account for the differences in patient populations and for factors outside the control of the health care facility;

(2)iistandardizing data collection methodology and reporting;

4036 79th LEGISLATURE — REGULAR SESSION

(3)iireviewing data collection and reporting systems of other entities related to infection rates, such as the National Nosocomial Infections Surveillance System of the federal Centers for Disease Control and Prevention;

(4)iireviewing data collection and reporting systems of other entities related to process measures, such as the Joint Commission on Accreditation of Healthcare Organizations or the Centers for Medicare and Medicaid Services;

(5)iimaximizing the efficient use of the resources required for health care facilities to conduct required surveillance and reporting;

(6)iirecognizing the potential unintended consequences of public reporting that is poorly designed or executed and that may diminish the overall quality of this state's health care or mislead or fail to protect health care consumers who use the data; and

(7)iiproviding additional benefits to health care consumers.

Sec.i96.102.iiREPORT TO LEGISLATURE. (a) Not later than November 1, 2006, the commissioner shall file a report with the presiding officer of each house of the legislature on the advisory panel's recommendations for legislation regarding the collection and reporting of infection rates, process measures, or both.

(b)iiThe report shall include a recommendation that the legislation set September 1, 2007, as the date for hospitals and ambulatory surgical centers to comply with the legislation.

(c) Nothing shall preclude the immediate reporting of the number of deaths from infection by hospitals and niche hospitals as included in this legislation.

SECTIONi__.iiAs soon as practicable after the effective date of this Act, the commissioner of the Department of State Health Services shall appoint members to the Advisory Panel on Health Care Associated Infections as required by Chapter 96, Health and Safety Code, as added by this Act.

Amendment No. 3 was adopted.

Amendment No. 4

Representative Naishtat offered the following amendment to SBi872:

Amend SB 872 on third reading by adding the following appropriately numbered SECTIONS and renumbering subsequent SECTIONS accordingly:

SECTION __. Section 311.033(a), Health and Safety Code, is amended to read as follows:

(a) A hospital shall submit to the department financial and utilization data for that hospital, including data relating to the hospital's:

(1) total gross revenue, including:

(A) Medicare gross revenue;

(B) Medicaid gross revenue;

(C) other revenue from state programs;

(D) revenue from local government programs;

(E) local tax support;

(F) charitable contributions;

(G) other third party payments;

(H) gross inpatient revenue; and

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4037

(I) gross outpatient revenue;

(2) total deductions from gross revenue, including:

(A) contractual allowance; and

(B) any other deducations;

(3) charity care;

(4) bad debt expense;

(5) total admissions, including:

(A) Medicare admissions;

(B) Medicaid admissions;

(C) admissions under a local government program;

(D) charity care admissions; and

(E) any other type of admission;

(6) total discharges;

(7) total patient days

(8) average length of stay;

(9) total outpatient visits

(10) total assets;

(11) total liabilities;

(12) estimates of unreimbursed costs of subsidized health services reported separately in the following categories:

(A) emergency care and trauma care;

(B) neonatal intensive care;

(C) free-standing community clinics;

(D) collaborative efforts with local government or private agencies in preventative medicine, such as immunization programs; and

(E) other services that satisfy the definition of "subsidized health services" contained in Section 311.031 [311.031(13)];

(13) donations;

(14) total cost of reimbursed and unreimbursed research;

(15) total cost of reimbursed and unreimbursed education separated into the following categories:

(A) education of physicians, nurses, technicians, and other medical professionals and health care providers;

(B) scholarships and funding to medical schools, colleges, and universities for health professions education;

(C) education of patients concerning diseases and home care in response to community needs;

(D) community health education through information programs, publications, and outreach activities in response to community needs; and

(E) other educational services that satisfy the definition of "education-related costs" under Section 311.031(6); and

(16) total emergency department visits, including the percentage of patients examined or treated in the hospital's emergency room who are insured and the percentage who are uninsured.

Amendment No. 4 was adopted.

4038 79th LEGISLATURE — REGULAR SESSION

SB 872, as amended, was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. Members registering votes are as follows: Hunter, Phillips, and Riddle recorded voting no.)

SB 1458 - VOTE RECONSIDERED

Representative Corte moved to reconsider the vote by which SB 1458 was passed.

The motion to reconsider prevailed.

SB 1458 ON THIRD READING
(Corte - House Sponsor)

SB 1458, A bill to be entitled An Act relating to the adoption of a uniform commercial building code for use in municipalities in the state.

Amendment No. 1

Representative Talton offered the following amendment to SBi1458:

Amend SB 1458, on third reading, in SECTION 4 of the bill, in added Section 214.216, Local Government Code (house committee report, page 3, between lines 2 and 3) by adding Subsection (e) to read as follows:

(e) A municipality that has adopted a more stringent commercial building code before January 1, 2006, is not required to repeal that code and may adopt future editions of that code.

Amendment No. 1 was adopted.

SB 1458, as amended, was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. No members registered their position on this measure.)

MAJOR STATE CALENDAR
(consideration continued)

SB 563 ON THIRD READING
(Delisi - House Sponsor)

SB 563, A bill to be entitled An Act relating to the prevention of Medicaid fraud; providing penalties.

SBi563 was passed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. No members registered their position on this measure.)

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4039

SB 1605 ON THIRD READING
(Luna - House Sponsor)

SB 1605, A bill to be entitled An Act relating to the creation and re-creation of funds and accounts in the state treasury, the dedication and rededication of revenue, and the exemption of unappropriated money from use for general governmental purposes.

A record vote was requested.

SBi1605 was passed by (Record 770): 142 Yeas, 0 Nays, 3 Present, not voting.

Yeas — Allen, A.; Allen, R.; Alonzo; Anchia; Anderson; Bailey; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Burnam; Callegari; Campbell; Casteel; Castro; Chavez; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Driver; Dukes; Dunnam; Dutton; Edwards; Eiland; Eissler; Elkins; Escobar; Farabee; Farrar; Flores; Flynn; Frost; Gallego; Gattis; Geren; Giddings; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Herrero; Hilderbran; Hill; Hochberg; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jackson; Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Leibowitz; Luna; Madden; Martinez; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Merritt; Miller; Moreno, P.; Mowery; Naishtat; Noriega, M.; Oliveira; Olivo; Orr; Otto; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rodriguez; Rose; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Strama; Straus; Swinford; Talton; Taylor; Thompson; Truitt; Turner; Uresti; Van Arsdale; Veasey; Villarreal; Vo; West; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker; Baxter; Nixon(C).

Absent, Excused — Hodge.

Absent — Gonzales; Morrison; Seaman.

STATEMENT OF VOTE

When Record No. 770 was taken, I was in the house but away from my desk. I would have voted yes.

Gonzales

LEAVE OF ABSENCE GRANTED

The following member was granted leave of absence for the remainder of today because of important business:

Driver on motion of Krusee.

4040 79th LEGISLATURE — REGULAR SESSION

MAJOR STATE CALENDAR
SENATE BILLS
SECOND READING

The following bills were laid before the house and read second time:

CSSB 422 ON SECOND READING
(Grusendorf - House Sponsor)

CSSB 422, A bill to be entitled An Act relating to the continuation and functions of the Texas Education Agency and regional education service centers; providing a penalty.

(Speaker in the chair)

CSSB 422 - POINT OF ORDER

Representative Geren raised a point of order against further consideration of CSSB 422 under Chapter 325.016 of the Government Code.

The speaker overruled the point of order, and had read the following statement:

Representative Geren raised a point of order against further consideration of CSSB 422 on the grounds that the bill violates Section 325.016, Government Code. The chair overrules the point of order on the following grounds:

First, the bill does not consider the continuation, transfer, or modification of more than one state agency. The only agency that is subject sunset in this bill is TEA. Therefore, Section 325.016(a) does not apply.

Second, the bill transfers TEA functions of driver's education oversight to TDLR. Those functions are not consolidated under the bill. Therefore, Section 325.016(b) does not apply.

Third, there is no transfer of the core functions of TEA to TDLR. In the bill, TEA still maintains its function of regulating and overseeing education. Therefore, Section 325.016(c) does not apply.

Fourth, the point of order arguing that the TEA and regional service centers are in single bills and that they are separate agencies is incorrect. Regional service centers are created by Chapter 8 of the Education Code and the commissioner provides for the establishment and operation of the centers.

Without ruling on the substantive constitutionality of this provision, which the chair may not do, the chair notes that the only two authorities that bind this body on procedural matters are the Texas Constitution and the House Rules.

Therefore for the reasons stated above, the point of order is respectfully overruled.

Amendment No. 1

Representative Grusendorf offered the following amendment to CSSBi422:

Amend CSSB 422 (committee report) as follows:

1) Page 2, Line 6, strike "open-enrollment"

2) Page 2, Line 17, strike "open-enrollment"

3) Page 2, Line 22, strike "open-enrollment"

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4041

4) Page 3, Line 3, strike "open-enrollment"

5) Page 3, Line 11, strike "open-enrollment"

6) Page 5, Line 8, strike "open-enrollment"

7) Page 10, Line 27, insert "and university charter school" between "school" and "under."

8) Page 11, Line 15, insert "and university charter school" between "school" and "or."

9) Page 11, Line 20, insert "and university charter school" between "school" and "or."

10) Page 40, Line 16, strike "open-enrollment"

11) Page 40, Line 24, strike "open-enrollment"

12) Page 41, Line 3, strike "open-enrollment"

13) Page 44, Line 10, strike "open-enrollment"

14) Page 52, Line 26, insert "and university charter school" between "school" and "ordered."

15) Page 53, Line 3, strike "open-enrollment"

Amendment No. 2

Representative Grusendorf offered the following amendment to Amendment No. 1:

Amend the amendment as follows:

Strike 7) through 15) and insert the following:

7) Page 10, Line 27, insert "or a college or university" between "open-enrollment" and "charter."

8) Page 11, Line 12, insert "or a college or university" between "open-enrollment" and "charter."

9) Page 11, Line 15, insert "or college or university" between "open-enrollment" and "charter."

10) Page 11, Line 19, insert "or college or university" between "open-enrollment" and "charter."

11) Page 40, Line 16, strike "open-enrollment"

12) Page 40, Line 24, strike "open-enrollment"

13) Page 41, Line 3, strike "open-enrollment"

14) Page 44, Line 10, strike "open-enrollment"

15) Page 52, Line 26, insert "or a college or university" between "open-enrollment" and "charter."

16) Page 53, Line 3, strike "open-enrollment"

Amendment No. 2 was adopted.

Amendment No. 1, as amended, was adopted.

Amendment No. 3

Representative Grusendorf offered the following amendment to CSSBi422:

Amend CSSB 422 (House committee printing) as follows:

(1)iiStrike SECTION 1.13 of the bill (page 12, lines 9 through 25) and renumber the subsequent SECTIONS of Article 1 accordingly.

4042 79th LEGISLATURE — REGULAR SESSION

(2)iiIn SECTION 2.31 of the bill, in amended Section 1001.254(a), Education Code (page 80, line 19), strike "State Board for Educator Certification" and substitute "commissioner of education [State Board for Educator Certification]".

(3)iiAdd the following appropriately numbered ARTICLE to the bill and renumber the subsequent ARTICLES accordingly:

ARTICLEi__.iiABOLISHMENT OF STATE BOARD FOR EDUCATOR CERTIFICATION; TRANSFER OF POWERS AND DUTIES

SECTIONi__.01.iiSection 21.0031(a), Education Code, is amended to read as follows:

(a)iiAn employee's probationary, continuing, or term contract under this chapter is void if the employee:

(1)iidoes not hold a certificate or permit issued under Subchapter B [by the State Board for Educator Certification]; or

(2)iifails to fulfill the requirements necessary to extend the employee's temporary or emergency certificate or permit.

SECTIONi__.02.iiSections 21.004(a)-(e), Education Code, are amended to read as follows:

(a)iiTo the extent that funds are available, the agency[, the State Board for Educator Certification,] and the Texas Higher Education Coordinating Board shall develop and implement programs to identify talented students and recruit those students and persons, including high school and undergraduate students, mid-career and retired professionals, honorably discharged and retired military personnel, and members of underrepresented gender and ethnic groups, into the teaching profession.

(b)iiFrom available funds, the agency[, the State Board for Educator Certification,] and the Texas Higher Education Coordinating Board shall develop and distribute materials that emphasize the importance of the teaching profession and inform individuals about state-funded loan forgiveness and tuition assistance programs.

(c)iiThe commissioner, in cooperation with the commissioner of higher education [and the executive director of the State Board for Educator Certification], shall annually identify the need for teachers in specific subject areas and geographic regions and among underrepresented groups. The commissioner shall give priority to developing and implementing recruitment programs to address those needs from the agency's discretionary funds.

(d)iiThe agency[, the State Board for Educator Certification,] and the Texas Higher Education Coordinating Board shall encourage the business community to cooperate with local schools to develop recruiting programs designed to attract and retain capable teachers, including programs to provide summer employment opportunities for teachers.

(e)iiThe agency[, the State Board for Educator Certification,] and the Texas Higher Education Coordinating Board shall encourage major education associations to cooperate in developing a long-range program promoting teaching as a career and to assist in identifying local activities and resources that may be used to promote the teaching profession.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4043

SECTIONi__.03.iiSections 21.006(b), (c), (e), (f), and (g), Education Code, are amended to read as follows:

(b)iiIn addition to the reporting requirement under Section 261.101, Family Code, the superintendent or director of a school district, regional education service center, or shared services arrangement shall notify the commissioner [State Board for Educator Certification] if the superintendent or director has reasonable cause to believe that:

(1)iian educator employed by or seeking employment by the district, service center, or shared services arrangement has a criminal record;

(2)iian educator's employment at the district, service center, or shared services arrangement was terminated based on a determination that the educator:

(A)iiabused or otherwise committed an unlawful act with a student or minor;

(B)iipossessed, transferred, sold, or distributed a controlled substance, as defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. Section 801 et seq.[, and its subsequent amendments];

(C)iiillegally transferred, appropriated, or expended funds or other property of the district, service center, or shared services arrangement;

(D)iiattempted by fraudulent or unauthorized means to obtain or alter a professional certificate or license for the purpose of promotion or additional compensation; or

(E)iicommitted a criminal offense or any part of a criminal offense on school property or at a school-sponsored event; or

(3)iithe educator resigned and reasonable evidence supports a recommendation by the superintendent or director to terminate the educator based on a determination that the educator engaged in misconduct described by Subdivision (2).

(c)iiThe superintendent or director must notify the commissioner [State Board for Educator Certification] by filing a report with the commissioner [board] not later than the seventh day after the date the superintendent or director first learns about an alleged incident of misconduct described by Subsection (b). The report must be:

(1)iiin writing; and

(2)iiin a form prescribed by the board.

(e)iiA superintendent or director who in good faith and while acting in an official capacity files a report with the commissioner [State Board for Educator Certification] under this section is immune from civil or criminal liability that might otherwise be incurred or imposed.

(f)iiThe commissioner [State Board for Educator Certification] shall determine whether to impose sanctions against a superintendent or director who fails to file a report in violation of Subsection (c).

(g)iiThe commissioner [State Board for Educator Certification] shall adopt [propose] rules as necessary to implement this section.

SECTIONi__.04.iiSection 21.031, Education Code, is amended to read as follows:

4044 79th LEGISLATURE — REGULAR SESSION

Sec.i21.031.iiCOMMISSIONER REGULATION OF EDUCATOR CERTIFICATION [PURPOSE]. (a) [The State Board for Educator Certification is established to recognize public school educators as professionals and to grant educators the authority to govern the standards of their profession.] The commissioner [board] shall regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators.

(b)iiThe commissioner shall adopt rules governing the certification of educators and continuing education for educators. In adopting [In proposing] rules under this subchapter, the commissioner [board] shall ensure that all candidates for certification or renewal of certification demonstrate the knowledge and skills necessary to improve the performance of the diverse student population of this state.

SECTIONi__.05.iiSections 21.041, 21.044, and 21.045, Education Code, are amended to read as follows:

Sec.i21.041.iiRULES; FEES. [(a) The board may adopt rules as necessary for its own procedures.]

(b)iiThe commissioner [board] shall adopt [propose] rules that:

(1)iiprovide for the regulation of educators and the general administration of this subchapter in a manner consistent with this subchapter;

(2)iispecify the classes of educator certificates to be issued, including emergency certificates;

(3)iispecify the period for which each class of educator certificate is valid;

(4)iispecify the requirements for the issuance and renewal of an educator certificate;

(5)iiprovide for the issuance of an educator certificate to a person who holds a similar certificate issued by another state or foreign country, subject to Section 21.052;

(6)iiprovide for special or restricted certification of educators, including certification of instructors of American Sign Language;

(7)iiprovide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code;

(8)iiprovide for the adoption, amendment, and enforcement of an educator's code of ethics;

(9)iiprovide for continuing education requirements; and

(10)iiprovide for certification of persons performing appraisals under Subchapter H.

(c)iiThe commissioner by rule [board] shall set [propose a rule adopting] a fee for the issuance and maintenance of an educator certificate that is adequate to cover the cost of administration of this subchapter.

Sec.i21.044.iiEDUCATOR PREPARATION. The commissioner [board] shall adopt [propose] rules establishing the training requirements a person must accomplish to obtain a certificate, enter an internship, or enter an induction-year program. The commissioner [board] shall specify the minimum academic qualifications required for a certificate.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4045

Sec.i21.045.iiACCOUNTABILITY SYSTEM FOR EDUCATOR PREPARATION PROGRAMS. (a) The commissioner [board] shall adopt [propose] rules establishing standards to govern the approval and continuing accountability of all educator preparation programs based on information that is disaggregated with respect to sex and ethnicity and that includes:

(1)iiresults of the certification examinations prescribed under Section 21.048(a); and

(2)iiperformance based on the appraisal system for beginning teachers adopted by the commissioner [board].

(b)iiEach educator preparation program shall submit data elements as required by the commissioner [board] for an annual performance report to ensure access and equity. At a minimum, the annual report must contain the performance data from Subsection (a) and the following information, disaggregated by sex and ethnicity:

(1)iithe number of candidates who apply;

(2)iithe number of candidates admitted;

(3)iithe number of candidates retained;

(4)iithe number of candidates completing the program;

(5)iithe number of candidates employed in the profession after completing the program; and

(6)iithe number of candidates retained in the profession.

(c)iiThe commissioner [board] shall adopt [propose] rules establishing performance standards for the Accountability System for Educator Preparation for accrediting educator preparation programs. At a minimum, performance standards must be based on Subsection (a). The commissioner [board] shall adopt [propose] rules for the sanction of educator preparation programs and shall annually review the accreditation status of each educator preparation program.

(d)iiThe commissioner [executive director of the board] shall appoint an oversight team of educators to make recommendations and provide assistance to educator preparation programs that do not meet accreditation standards. If, after one year, an educator preparation program has not fulfilled the recommendations of the oversight team, the commissioner [executive director] shall appoint a person to administer and manage the operations of the program. If the program does not improve after two years, the commissioner [board] shall revoke the approval of the program to prepare educators for state certification.

SECTIONi__.06.iiSections 21.046(c) and (d), Education Code, are amended to read as follows:

(c)iiBecause an effective principal is essential to school improvement, the commissioner [board] shall ensure that:

(1)iieach candidate for certification as a principal is of the highest caliber; and

(2)iimulti-level screening processes, validated comprehensive assessment programs, and flexible internships with successful mentors exist to determine whether a candidate for certification as a principal possesses the essential knowledge, skills, and leadership capabilities necessary for success.

4046 79th LEGISLATURE — REGULAR SESSION

(d)iiIn creating the qualifications for certification as a principal, the commissioner [board] shall consider the knowledge, skills, and proficiencies for principals as developed by relevant national organizations and the State Board of Education.

SECTIONi__.07.iiSections 21.047(a) and (b), Education Code, are amended to read as follows:

(a)iiThe commissioner [board] may develop the process for the establishment of centers for professional development through institutions of higher education for the purpose of integrating technology and innovative teaching practices in the preservice and staff development training of public school teachers and administrators. An institution of higher education with a teacher education program may develop a center through a collaborative process involving public schools, regional education service centers, and other entities or businesses. A center may contract with other entities to develop materials and provide training.

(b)iiOn application by a center, the commissioner [board] shall make grants to the center for its programs from funds derived from gifts, grants, and legislative appropriations for that purpose. The commissioner [board] shall award the grants on a competitive basis according to requirements established by commissioner [the board] rules.

SECTIONi__.08.iiSections 21.048(a), (b), and (c), Education Code, are amended to read as follows:

(a)iiThe commissioner [board] shall adopt [propose] rules prescribing comprehensive examinations for each class of certificate issued by the board.

(b)iiThe commissioner [board] may not administer a written examination to determine the competence or level of performance of an educator who has a hearing impairment unless the examination has been field tested to determine its appropriateness, reliability, and validity as applied to, and minimum acceptable performance scores for, persons with hearing impairments.

(c)iiAn educator who has a hearing impairment is exempt from taking a written examination for a period ending on the first anniversary of the date on which the commissioner [board] determines, on the basis of appropriate field tests, that the examination complies with the standards specified in Subsection (b). On application to the commissioner [board], the commissioner [board] shall issue a temporary exemption certificate to a person entitled to an exemption under this subsection.

SECTIONi__.09.iiSections 21.0481, 21.0482, 21.0483, 21.0484, and 21.049, Education Code, are amended to read as follows:

Sec.i21.0481.iiMASTER READING TEACHER CERTIFICATION. (a) To ensure that there are teachers with special training to work with other teachers and with students in order to improve student reading performance, the commissioner [board] shall establish a master reading teacher certificate.

(b)iiThe commissioner [board] shall issue a master reading teacher certificate to each eligible person.

(c)iiTo be eligible for a master reading teacher certificate, a person must:

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4047

(1)iihold a reading specialist certificate issued under this subchapter and satisfactorily complete a course of instruction as prescribed under Subdivision (2)(B); or

(2)iihold a teaching certificate issued under this subchapter and:

(A)iihave at least three years of teaching experience;

(B)iisatisfactorily complete a knowledge-based and skills-based course of instruction on the science of teaching children to read that includes training in:

(i)iieffective reading instruction techniques, including effective techniques for students whose primary language is a language other than English;

(ii)iiidentification of dyslexia and related reading disorders and effective reading instruction techniques for students with those disorders; and

(iii)iieffective professional peer mentoring techniques;

(C)iiperform satisfactorily on the master reading teacher certification examination prescribed by the commissioner [board]; and

(D)iisatisfy any other requirements prescribed by the commissioner [board].

Sec.i21.0482.iiMASTER MATHEMATICS TEACHER CERTIFICATION. (a) To ensure that there are teachers with special training to work with other teachers and with students in order to improve student mathematics performance, the commissioner [board] shall establish:

(1)iia master mathematics teacher certificate to teach mathematics at elementary school grade levels;

(2)iia master mathematics teacher certificate to teach mathematics at middle school grade levels; and

(3)iia master mathematics teacher certificate to teach mathematics at high school grade levels.

(b)iiThe commissioner [board] shall issue the appropriate master mathematics teacher certificate to each eligible person.

(c)iiTo be eligible for a master mathematics teacher certificate, a person must:

(1)iihold a teaching certificate issued under this subchapter;

(2)iihave at least three years of teaching experience;

(3)iisatisfactorily complete a knowledge-based course of instruction on the science of teaching children mathematics that includes training in mathematics instruction and professional peer mentoring techniques that, through scientific testing, have been proven effective;

(4)iiperform satisfactorily on the appropriate master mathematics teacher certification examination prescribed by the commissioner [board]; and

(5)iisatisfy any other requirements prescribed by the commissioner [board].

(d)iiThe course of instruction prescribed under Subsection (c)(3) shall be developed by the commissioner [board] in consultation with mathematics and science faculty members at institutions of higher education.

4048 79th LEGISLATURE — REGULAR SESSION

Sec.i21.0483.iiMASTER TECHNOLOGY TEACHER CERTIFICATION. (a) To ensure that there are teachers with special training to work with other teachers and with students in order to increase the use of technology in each classroom, the commissioner [board] shall establish a master technology teacher certificate.

(b)iiThe commissioner [board] shall issue a master technology teacher certificate to each eligible person.

(c)iiTo be eligible for a master technology teacher certificate, a person must:

(1)iihold a technology applications or Technology Education certificate issued under this subchapter, satisfactorily complete the course of instruction prescribed under Subdivision (2)(B), and satisfactorily perform on the examination prescribed under Subdivision (2)(C); or

(2)iihold a teaching certificate issued under this subchapter and:

(A)iihave at least three years of teaching experience;

(B)iisatisfactorily complete a knowledge-based and skills-based course of instruction on interdisciplinary technology applications and the science of teaching technology that includes training in:

(i)iieffective technology instruction techniques, including applications designed to meet the educational needs of students with disabilities;

(ii)iiclassroom teaching methodology that engages student learning through the integration of technology;

(iii)iidigital learning competencies, including Internet research, graphics, animation, website mastering, and video technologies;

(iv)iicurriculum models designed to prepare teachers to facilitate an active student learning environment; and

(v)iieffective professional peer mentoring techniques;

(C)iisatisfactorily perform on an examination developed in cooperation with the Telecommunications Infrastructure Fund Board and administered at the conclusion of the course of instruction prescribed under Paragraph (B); and

(D)iisatisfy any other requirements prescribed by the commissioner [board].

(d)iiThe commissioner [board] may provide technology applications training courses under Subsection (c)(2)(B) in cooperation with:

(1)iiregional education service centers; and

(2)iiother public or private entities, including any state council on technology.

Sec.i21.0484.iiMASTER SCIENCE TEACHER CERTIFICATION. (a) To ensure that there are teachers with special training to work with other teachers and with students in order to improve student science performance, the commissioner [board] shall establish:

(1)iia master science teacher certificate to teach science at elementary school grade levels;

(2)iia master science teacher certificate to teach science at middle school grade levels; and

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4049

(3)iia master science teacher certificate to teach science at high school grade levels.

(b)iiThe commissioner [board] shall issue the appropriate master science teacher certificate to each eligible person.

(c)iiTo be eligible for a master science teacher certificate, a person must:

(1)iihold a teaching certificate issued under this subchapter;

(2)iihave at least three years of teaching experience;

(3)iisatisfactorily complete a knowledge-based course of instruction on the science of teaching children science that includes training in science instruction and professional peer mentoring techniques that, through scientific testing, have been proven effective;

(4)iiperform satisfactorily on the appropriate master science teacher certification examination prescribed by the commissioner [board]; and

(5)iisatisfy any other requirements prescribed by the commissioner [board].

(d)iiThe course of instruction prescribed under Subsection (c)(3) shall be developed by the commissioner [board] in consultation with science faculty members at institutions of higher education.

Sec.i21.049.iiALTERNATIVE CERTIFICATION. (a) To provide a continuing additional source of qualified educators, the commissioner [board] shall adopt [propose] rules providing for educator certification programs as an alternative to traditional educator preparation programs. The rules may not provide that a person may be certified under this section only if there is a demonstrated shortage of educators in a school district or subject area.

(b)iiThe commissioner [board] may not require a person employed as a teacher in a disciplinary [an] alternative education program under Section 37.008 or a juvenile justice alternative education program under Section 37.011 for at least three years to complete an alternative educator certification program adopted under this section before taking the appropriate certification examination.

SECTIONi__.10.iiSections 21.050(a) and (b), Education Code, are amended to read as follows:

(a)iiA person who applies for a teaching certificate for which commissioner [board] rules require a bachelor's degree must possess a bachelor's degree received with an academic major or interdisciplinary academic major, including reading, other than education, that is related to the curriculum as prescribed under Subchapter A, Chapter 28.

(b)iiThe commissioner [board] may not require more than 18 semester credit hours of education courses at the baccalaureate level for the granting of a teaching certificate. The commissioner [board] shall provide for a minimum number of semester credit hours of internship to be included in the hours needed for certification. The commissioner [board] may adopt [propose] rules requiring additional credit hours for certification in bilingual education, English as a second language, early childhood education, or special education.

SECTIONi__.11.iiSection 21.051, Education Code, is amended to read as follows:

4050 79th LEGISLATURE — REGULAR SESSION

Sec.i21.051.iiOPTIONS FOR FIELD EXPERIENCE AND INTERNSHIPS. The commissioner [board] shall adopt [propose] rules providing flexible options for persons for any field experience or internship required for certification.

SECTIONi__.12.iiSection 21.052(a), Education Code, is amended to read as follows:

(a)iiThe commissioner [board] may issue a certificate to an educator who:

(1)iiholds:

(A)iia degree issued by an institution accredited by a regional accrediting agency or group that is recognized by a nationally recognized accreditation board; or

(B)iia degree issued by an institution located in a foreign country, if the degree is equivalent to a degree described by Paragraph (A);

(2)iiholds an appropriate certificate or other credential issued by another state or country; and

(3)iiperforms satisfactorily on:

(A)iithe examination prescribed under Section 21.048; or

(B)iiif the educator holds a certificate or other credential issued by another state or country, an examination similar to and at least as rigorous as that described by Paragraph (A) administered to the educator under the authority of that state.

SECTIONi__.13.iiSection 21.054(a), Education Code, is amended to read as follows:

(a)iiThe commissioner [board] shall adopt [propose] rules establishing a process for identifying continuing education courses and programs that fulfill educators' continuing education requirements.

SECTIONi__.14.iiSection 21.055(a), Education Code, is amended to read as follows:

(a)iiAs provided by this section, a school district may issue a school district teaching permit and employ as a teacher a person who does not hold a teaching certificate issued by the commissioner [board].

SECTIONi__.15.iiSection 21.056, Education Code, is amended to read as follows:

Sec.i21.056.iiADDITIONAL CERTIFICATION. The commissioner [board] by rule shall provide for a certified educator to qualify for additional certification to teach at a grade level or in a subject area not covered by the educator's certificate upon satisfactory completion of an examination or other assessment of the educator's qualification.

SECTIONi__.16.iiSection 21.057(d), Education Code, is amended to read as follows:

(d)iiFor purposes of this section, "inappropriately certified or uncertified teacher":

(1)iiincludes:

(A)iian individual serving on an emergency certificate issued under Section 21.041(b)(2); or

(B)iian individual who does not hold any certificate or permit issued under this chapter and is not employed as specified by Subdivision (2)(E); and

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4051

(2)iidoes not include an individual:

(A)iiwho is a certified teacher assigned to teach a class or classes outside his or her area of certification, as determined by rules adopted [proposed] by the commissioner [board] in specifying the certificate required for each assignment;

(B)iiserving on a certificate issued due to a hearing impairment under Section 21.048;

(C)iiserving on a certificate issued pursuant to enrollment in an approved alternative certification program under Section 21.049;

(D)iicertified by another state or country and serving on a certificate issued under Section 21.052;

(E)iiserving on a school district teaching permit issued under Section 21.055; or

(F)iiemployed under a waiver granted by the commissioner pursuant to Section 7.056.

SECTIONi__.17.iiSections 21.058(b) and (d), Education Code, are amended to read as follows:

(b)iiNotwithstanding Section 21.041(b)(7), not later than the fifth day after the date the board receives notice under Article 42.018, Code of Criminal Procedure, of the conviction of a person who holds a certificate under this subchapter, the commissioner [board] shall:

(1)iirevoke the certificate held by the person; and

(2)iiprovide to the person and to any school district or open-enrollment charter school employing the person at the time of revocation written notice of:

(A)iithe revocation; and

(B)iithe basis for the revocation.

(d)iiA person whose certificate is revoked under Subsection (b) may reapply for a certificate in accordance with commissioner [board] rules.

SECTIONi__.18.iiSection 21.105(c), Education Code, is amended to read as follows:

(c)iiOn written complaint by the employing district, the commissioner [State Board for Educator Certification] may impose sanctions against a teacher employed under a probationary contract who:

(1)iiresigns;

(2)iifails without good cause to comply with Subsection (a) or (b); and

(3)iifails to perform the contract.

SECTIONi__.19.iiSection 21.160(c), Education Code, is amended to read as follows:

(c)iiOn written complaint by the employing district, the commissioner [State Board for Educator Certification] may impose sanctions against a teacher who is employed under a continuing contract that obligates the district to employ the person for the following school year and who:

(1)iiresigns;

(2)iifails without good cause to comply with Subsection (a) or (b); and

(3)iifails to perform the contract.

4052 79th LEGISLATURE — REGULAR SESSION

SECTIONi__.20.iiSection 21.210(c), Education Code, is amended to read as follows:

(c)iiOn written complaint by the employing district, the commissioner [State Board for Educator Certification] may impose sanctions against a teacher who is employed under a term contract that obligates the district to employ the person for the following school year and who:

(1)iiresigns;

(2)iifails without good cause to comply with Subsection (a) or (b); and

(3)iifails to perform the contract.

SECTIONi__.21.iiSection 21.503, Education Code, is amended to read as follows:

Sec.i21.503.iiELIGIBILITY. A person is eligible for the program if the person:

(1)iihas served in the armed forces of the United States;

(2)iiis honorably discharged, retired, or released from active duty on or after October 1, 1990, after at least six years of continuous active duty service immediately before the discharge, retirement, or release;

(3)iihas received a baccalaureate or advanced degree from a public or private institution of higher education accredited by a regional accrediting agency or group that is recognized by a nationally recognized accreditation board; and

(4)iisatisfies any other criteria for selection [jointly] prescribed by the agency [and the State Board for Educator Certification].

SECTIONi__.22.iiSection 21.504(b), Education Code, is amended to read as follows:

(b)iiThe agency [and the State Board for Educator Certification] shall distribute the applications and information regarding the program.

SECTIONi__.23.iiSection 21.510(c), Education Code, is amended to read as follows:

(c)iiFor purposes of this section, a participant in the program is not considered to be in violation of an agreement under Section 21.508 during any period in which the participant:

(1)iiis pursuing a full-time course of study related to the field of teaching at a public or private institution of higher education approved by the agency [State Board for Educator Certification];

(2)iiis serving on active duty as a member of the armed forces of the United States;

(3)iiis temporarily totally disabled for a period not to exceed three years as established by sworn affidavit of a qualified physician;

(4)iiis unable to secure employment for a period not to exceed one year because of care required by a disabled spouse;

(5)iiis seeking and unable to find full-time employment as a teacher in a public elementary or secondary school for a single period not to exceed 27 months; or

(6)iisatisfies the provisions of any additional reimbursement exception adopted by the agency.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4053

SECTIONi__.24.iiSections 21.551, 21.552, and 21.553, Education Code, are amended to read as follows:

Sec.i21.551.iiPURPOSES.iiThe purposes of the alternative certification Teach for Texas Pilot Program are to:

(1)iiattract to the teaching profession persons who have expressed interest in teaching and to support the certification of those persons as teachers;

(2)iirecognize the importance of the certification process governed by the commissioner [State Board for Educator Certification] under Subchapter B, which requires verification of competence in subject area and professional knowledge and skills;

(3)iiencourage the creation and expansion of educator preparation programs that recognize the knowledge and skills gained through previous educational and work-related experiences and that are delivered in a manner that recognizes individual circumstances, including the need to remain employed full-time while enrolled in the Teach for Texas Pilot Program; and

(4)iiprovide annual stipends to postbaccalaureate teacher certification candidates.

Sec.i21.552.iiPROGRAM ESTABLISHED.iiThe commissioner [State Board for Educator Certification] by rule shall establish the Teach for Texas Pilot Program consistent with the purposes provided by Section 21.551.

Sec.i21.553.iiFINANCIAL INCENTIVES. (a) The pilot program must offer to participants financial incentives, including tuition assistance and loan forgiveness. In offering a financial incentive, the commissioner [State Board for Educator Certification] shall:

(1)iirequire a contract between each participant who accepts a financial incentive and the agency [State Board for Educator Certification] under which the participant is obligated to teach in a public school in this state for a stated period after certification;

(2)iiprovide financial incentives in proportion to the length of the period the participant is obligated by contract to teach after certification; and

(3)iigive special financial incentives to a participant who agrees in the contract to teach in an underserved area.

(b)iiFinancial incentives may be paid only from funds appropriated specifically for that purpose and from gifts, grants, and donations solicited or accepted by the commissioner [State Board for Educator Certification] for that purpose.

(c)iiThe commissioner [State Board for Educator Certification] shall adopt [propose] rules establishing criteria for awarding financial incentives under this section, including criteria for awarding financial incentives if there are more participants than funds available to provide the financial incentives.

SECTIONi__.25.iiSection 21.604(b), Education Code, is amended to read as follows:

(b)iiThe agency [and the State Board for Educator Certification] shall distribute the applications and information regarding the program.

SECTIONi__.26.iiSection 21.609(c), Education Code, is amended to read as follows:

4054 79th LEGISLATURE — REGULAR SESSION

(c)iiFor purposes of this section, a participant in the program is not considered to be in violation of an agreement under Section 21.607 during any period in which the participant:

(1)iiis pursuing a full-time course of study related to the field of teaching at an institution of higher education approved by the agency [State Board for Educator Certification];

(2)iiis serving on active duty as a member of the armed forces of the United States;

(3)iiis temporarily totally disabled for a period not to exceed three years as established by affidavit of a qualified physician;

(4)iiis unable to secure employment for a period not to exceed one year because of care required by a disabled spouse;

(5)iiis seeking and unable to find full-time employment as a teacher in a public elementary or secondary school for a single period not to exceed 27 months; or

(6)iisatisfies the provisions of any additional reimbursement exception adopted by the agency.

SECTIONi__.27.iiSection 22.0512(b), Education Code, is amended to read as follows:

(b)iiIn this section, "disciplinary proceeding" means:

(1)iian action brought by the school district employing a professional employee of a school district to discharge or suspend the employee or terminate or not renew the employee's term contract; or

(2)iian action brought by the agency [State Board for Educator Certification] to enforce the educator's code of ethics adopted under Section 21.041(b)(8).

SECTIONi__.28.iiSection 22.082, Education Code, is amended to read as follows:

Sec.i22.082.iiACCESS TO CRIMINAL HISTORY RECORDS BY AGENCY [STATE BOARD FOR EDUCATOR CERTIFICATION]. The agency [State Board for Educator Certification] shall obtain from any law enforcement or criminal justice agency all criminal history record information that relates to an applicant for or holder of a certificate issued under Subchapter B, Chapter 21.

SECTIONi__.29.iiSection 22.083(d), Education Code, is amended to read as follows:

(d)iiThe superintendent of a district or the director of an open-enrollment charter school, private school, regional education service center, or shared services arrangement shall promptly notify the commissioner [State Board for Educator Certification] in writing if the person obtains or has knowledge of information showing that an applicant for or holder of a certificate issued under Subchapter B, Chapter 21, has a reported criminal history.

SECTIONi__.30.iiSections 22.085 and 22.086, Education Code, are amended to read as follows:

Sec.i22.085.iiDISCHARGE OF EMPLOYEES CONVICTED OF OFFENSES. A school district, open-enrollment charter school, private school, regional education service center, or shared services arrangement may discharge

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Sec.i22.086.iiLIABILITY FOR REPORTING OFFENSES. The agency [State Board for Educator Certification], a school district, an open-enrollment charter school, a private school, a regional education service center, a shared services arrangement, or an employee of the agency [board], district, school, service center, or shared services arrangement is not civilly or criminally liable for making a report required under this subchapter.

SECTIONi__.31.iiSections 29.061(a)-(c) and (e), Education Code, are amended to read as follows:

(a)iiThe commissioner [State Board for Educator Certification] shall provide for the issuance of teaching certificates appropriate for bilingual education instruction to teachers who possess a speaking, reading, and writing ability in a language other than English in which bilingual education programs are offered and who meet the general requirements of Chapter 21. The commissioner [board] shall also provide for the issuance of teaching certificates appropriate for teaching English as a second language. The commissioner [board] may issue emergency endorsements in bilingual education and in teaching English as a second language.

(b)iiA teacher assigned to a bilingual education program must be appropriately certified under Subchapter B, Chapter 21, for bilingual education [by the board].

(c)iiA teacher assigned to an English as a second language or other special language program must be appropriately certified under Subchapter B, Chapter 21, for English as a second language [by the board].

(e)iiThe agency [State Board for Educator Certification] and the Texas Higher Education Coordinating Board shall develop a comprehensive plan for meeting the teacher supply needs created by the programs outlined in this subchapter.

SECTIONi__.32.iiSections 33.002(b) and (c), Education Code, are amended to read as follows:

(b)iiA school district with 500 or more students enrolled in elementary school grades shall employ a counselor certified under the rules of the commissioner [State Board for Educator Certification] for each elementary school in the district. A school district shall employ at least one counselor for every 500 elementary school students in the district.

(c)iiA school district with fewer than 500 students enrolled in elementary school grades shall provide guidance and counseling services to elementary school students by:

(1)iiemploying a part-time counselor certified under the rules of the commissioner [State Board for Educator Certification];

4056 79th LEGISLATURE — REGULAR SESSION

(2)iiemploying a part-time teacher certified as a counselor under the rules of the commissioner [State Board for Educator Certification]; or

(3)iientering into a shared services arrangement agreement with one or more school districts to share a counselor certified under the rules of the commissioner [State Board for Educator Certification].

SECTIONi__.33.iiSection 37.007(g), Education Code, is amended to read as follows:

(g)iiA school district shall inform each teacher who has regular contact with a student through a classroom assignment of the conduct of a student who has engaged in any violation listed in this section. A teacher shall keep the information received in this subsection confidential. The commissioner [State Board for Educator Certification] may revoke or suspend the certification of a teacher who intentionally violates this subsection.

SECTIONi__.34.iiSection 61.0514, Education Code, is amended to read as follows:

Sec.i61.0514.iiINTEGRATED COURSEWORK. The board, with the cooperation and advice of the commissioner of education [State Board for Educator Certification], shall adopt educator preparation coursework guidelines that promote, to the greatest extent practicable, the integration of subject matter knowledge with classroom teaching strategies and techniques in order to maximize the effectiveness and efficiency of coursework required for certification under Subchapter B, Chapter 21.

SECTIONi__.35.iiSection 61.077, Education Code, as amended by Chapters 61, 818, and 820, Acts of the 78th Legislature, Regular Session, 2003, is reenacted and amended to read as follows:

Sec.i61.077.iiP-16 COUNCIL. (a) The P-16 Council shall advise the Texas Higher Education Coordinating Board and the State Board of Education in coordinating postsecondary career and technology activities, career and technology teacher education programs offered or proposed to be offered in the colleges and universities of this state, and other relevant matters, including those listed in Section 61.076.

(b)iiThe council is composed of the commissioner of education, the commissioner of higher education, and the executive director of the Texas Workforce Commission[, and the executive director of the State Board for Educator Certification]. Existing members of the council may appoint additional members as the members consider necessary. The position of presiding officer rotates among the members of the council in the order the members are listed in this subsection, with each member serving as the presiding officer for one two-year term.

(c)iiThe council shall meet at least once each calendar quarter and may hold other meetings as necessary at the call of the presiding officer. Each member of the council or the member's designee shall make a report of the council's activities at least twice annually to the governing body of the member's agency or, in the case of the commissioner of education, to the State Board of Education.

(d)iiThe purposes of this council shall include the following:

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(1)iito advise the two boards on the coordination of postsecondary career and technology education and the articulation between postsecondary career and technology education and secondary career and technology education;

(2)iito facilitate the transfer of responsibilities for the administration of postsecondary career and technology education from the State Board of Education to the board in accordance with Section 111(a)(I) of the Carl D. Perkins Vocational Education Act, Public Law 98-524;

(3)iito cooperate with the commissioner of higher education and the State Board of Education, when it acts as the State Board for Career and Technology Education, on the following:

(A)iithe transfer of federal funds to the board for allotment to eligible public postsecondary institutions of higher education;

(B)iithe career and technology education funding for projects and institutions as determined by the board when the State Board for Career and Technology Education is required by federal law to endorse such determinations;

(C)iithe development and updating of the state plan for career and technology education and the evaluation of programs, services, and activities of postsecondary career and technology education and such amendments to the state plan for career and technology education as may relate to postsecondary education;

(D)iiother matters related to postsecondary career and technology education; and

(E)iithe coordination of curricula, instructional programs, research, and other functions as appropriate, including areas listed in Section 61.076, school-to-work and school-to-college transition programs, and professional development activities;

(4)iito advise the Texas Workforce Investment Council on educational policy issues related to workforce preparation; and

(5)iito examine and make recommendations regarding the alignment of secondary and postsecondary education:

(A)iicurricula; and

(B)iitesting and assessment.

(e)iiSubsection (d)(5) does not require the council to establish curriculum or testing or assessment standards.

SECTIONi__.36.iiArticle 15.27(a), Code of Criminal Procedure, is amended to read as follows:

(a)iiA law enforcement agency that arrests any person or refers a child to the office or official designated by the juvenile board who the agency believes is enrolled as a student in a public primary or secondary school, for an offense listed in Subsection (h), shall attempt to ascertain whether the person is so enrolled. If the law enforcement agency ascertains that the individual is enrolled as a student in a public primary or secondary school, the agency shall orally notify the superintendent or a person designated by the superintendent in the school district in which the student is enrolled of that arrest or referral within 24 hours after the arrest or referral is made, or on the next school day. If the law enforcement agency cannot ascertain whether the individual is enrolled as a student, the

4058 79th LEGISLATURE — REGULAR SESSION

SECTIONi__.37.iiArticle 42.018(b), Code of Criminal Procedure, is amended to read as follows:

(b)iiNot later than the fifth day after the date a person who holds a certificate issued under Subchapter B, Chapter 21, Education Code, is convicted or granted deferred adjudication on the basis of an offense, the clerk of the court in which the conviction or deferred adjudication is entered shall provide to the Texas Education Agency [State Board for Educator Certification] written notice of the person's conviction or deferred adjudication, including the offense on which the conviction or deferred adjudication was based.

SECTIONi__.38.iiSection 411.090, Government Code, is amended to read as follows:

Sec.i411.090.iiACCESS TO CRIMINAL HISTORY RECORD INFORMATION: TEXAS EDUCATION AGENCY [STATE BOARD FOR EDUCATOR CERTIFICATION]. (a) The Texas Education Agency [State Board for Educator Certification] is entitled to obtain from the department any criminal history record information maintained by the department about a person who has applied to the commissioner of education [board] for a certificate or holds a certificate under Subchapter B, Chapter 21, Education Code.

(b)iiCriminal history record information obtained by the agency [board] under Subsection (a):

(1)iimay be used for any purpose related to the issuance, denial, suspension, or cancellation of a certificate issued under Subchapter B, Chapter 21, Education Code [by the board];

(2)iimay not be released to any other person except on court order or with the consent of the applicant for a certificate; and

(3)iishall be destroyed by the agency [board] after the information is used for the authorized purposes.

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SECTIONi__.39.iiSection 411.097(d), Government Code, is amended to read as follows:

(d)iiCriminal history record information obtained by a school district, charter school, private school, service center, commercial transportation company, or shared services arrangement under Subsection (a), (b), or (c) may not be released or disclosed to any person, other than the individual who is the subject of the information, the Texas Education Agency, [the State Board for Educator Certification,] or the chief personnel officer of the transportation company, if the information is obtained under Subsection (a)(2).

SECTIONi__.40.iiSection 654.011(a), Government Code, is amended to read as follows:

(a)iiThe position classification plan and the salary rates and provisions in the General Appropriations Act apply to all hourly, part-time, temporary, and regular, full-time salaried employments in the state departments, agencies, or judicial entities specified in the articles of the General Appropriations Act that appropriate money to:

(1)iigeneral government agencies;

(2)iihealth and human services agencies;

(3)iithe judiciary, except for judges, district attorneys, and assistant district attorneys;

(4)iipublic safety and criminal justice agencies;

(5)iinatural resources agencies;

(6)iibusiness and economic development agencies;

(7)iiregulatory agencies; and

(8)iiagencies of public education, but only the Texas Education Agency, the Texas School for the Blind and Visually Impaired, [the State Board for Educator Certification,] the Telecommunications Infrastructure Fund, and the Texas School for the Deaf.

SECTIONi__.41.iiSection 821.001(7), Government Code, is amended to read as follows:

(7)ii"Employer" means any agents or agencies in the state responsible for public education, including the governing board of any school district created under the laws of this state, any county school board, the board of trustees, the board of regents of any college or university, or any other legally constituted board or agency of any public school, but excluding the State Board of Education and[,] the Texas Education Agency[, and the State Board for Educator Certification].

SECTIONi__.42.iiSection 821.103, Government Code, is amended to read as follows:

Sec.i821.103.iiREVOCATION [CANCELLATION] OF TEACHER CERTIFICATE.ii(a) After receiving notice from the board of trustees of an offense under Section 821.101 and after complying with Chapter 2001 and rules adopted by the commissioner of education [State Board for Educator Certification], the commissioner [State Board for Educator Certification] may

4060 79th LEGISLATURE — REGULAR SESSION

(b)iiThe commissioner of education [executive director of the State Board for Educator Certification] may enter into an agreed sanction.

(c)iiA criminal prosecution of an offender under Section 821.101 is not a prerequisite to action by the commissioner of education [State Board for Educator Certification or its executive director].

SECTIONi__.43.iiSection 2054.352(a), Government Code, is reenacted and amended to conform to Chapters 553, 1216, and 1275, Acts of the 78th Legislature, Regular Session, 2003, and further amended to read as follows:

(a)iiThe following licensing entities shall participate in the system established under Section 2054.353[, as added by Chapter 353, Acts of the 77th Legislature, Regular Session, 2001]:

(1)iiState Board of Barber Examiners;

(2)iiTexas Board of Chiropractic Examiners;

(3)iiTexas Cosmetology Commission;

(4)iiCourt Reporters Certification Board;

(5)iiState Board of Dental Examiners;

(6)iiTexas Funeral Service Commission;

(7)iiTexas Board of Professional Land Surveying;

(8)iiTexas State Board of Medical Examiners;

(9)iiBoard of Nurse Examiners;

(10)iiTexas Optometry Board;

(11)iiTexas Structural Pest Control Board;

(12)iiTexas State Board of Pharmacy;

(13)iiExecutive Council of Physical Therapy and Occupational Therapy Examiners;

(14)iiTexas State Board of Plumbing Examiners;

(15)iiTexas State Board of Podiatric Medical Examiners;

(16)iiBoard of Tax Professional Examiners;

(17)iiPolygraph Examiners Board;

(18)iiTexas State Board of Examiners of Psychologists;

(19)iiState Board of Veterinary Medical Examiners;

(20)iiTexas Real Estate Commission;

(21)iiTexas Appraiser Licensing and Certification Board;

(22)iiTexas Department of Licensing and Regulation;

(24)iiTexas State Board of Public Accountancy;

(25)iiTexas Education Agency [State Board for Educator Certification];

(26)iiTexas Board of Professional Engineers;

(27)iiTexas Department of Health;

(28)iiTexas Board of Architectural Examiners;

(29)iiTexas Racing Commission;

(30)iiCommission on Law Enforcement Officer Standards and Education; and

(31)iiTexas Commission on Private Security.

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SECTIONi__.44.iiSection 2165.104(c), Government Code, is amended to read as follows:

(c)iiTo the extent possible without sacrificing critical public or client services, the commission may not allocate usable office space, as defined by the commission, to a state agency under Article I, II, V, VI, VII, or VIII of the General Appropriations Act or to the Texas Higher Education Coordinating Board, the Texas Education Agency, [the State Board for Educator Certification,] the Telecommunications Infrastructure Fund Board, or the Office of Court Administration of the Texas Judicial System in an amount that exceeds an average of 135 square feet per agency employee for each agency site. To the extent that any of those agencies allocates its own usable office space, as defined by the commission, the agency shall allocate the space to achieve the required ratio. This subsection does not apply to:

(1)iian agency site at which there are so few employees that it is not practical to apply this subsection to that site, as determined by the commission; and

(2)iian agency site at which it is not practical to apply this subsection because of the site's type of space or use of space, as determined by the commission.

SECTIONi__.45.iiSection 504.002(b), Occupations Code, is amended to read as follows:

(b)iiThis chapter does not apply to an activity or service of a person who:

(1)iiis employed as a counselor by a federal institution and is providing chemical dependency counseling within the scope of the person's employment;

(2)iiexcept as provided by Section 504.057, is a student, intern, or trainee pursuing a supervised course of study in counseling at a regionally accredited institution of higher education or training institution, if the person:

(A)iiis designated as a "counselor intern"; and

(B)iiis engaging in the activity or providing the service as part of the course of study;

(3)iiis not a resident of this state, if the person:

(A)iiengages in the activity or provides the service in this state for not more than 30 days during any year; and

(B)iiis authorized to engage in the activity or provide the service under the law of the state of the person's residence;

(4)iiis a licensed physician, psychologist, professional counselor, or social worker;

(5)iiis a religious leader of a congregation providing pastoral chemical dependency counseling within the scope of the person's duties;

(6)iiis working for or providing counseling with a program exempt under Subchapter C, Chapter 464, Health and Safety Code; or

(7)iiis a school counselor certified under Subchapter B, Chapter 21, Education Code [by the State Board for Educator Certification].

SECTIONi__.46.iiSections 21.032, 21.033, 21.034, 21.035, 21.036, 21.037, 21.038, 21.039, 21.040, 21.042, and 21.043, Education Code, are repealed.

4062 79th LEGISLATURE — REGULAR SESSION

SECTIONi__.47.ii(a) The State Board for Educator Certification is abolished, and all powers, duties, personnel, property, assets, and obligations of the board are transferred to the Texas Education Agency. The validity of a prior action of the State Board for Educator Certification is not affected by the abolishment, and any pending activities of the State Board for Educator Certification shall be deemed to have continued without interruption or material change.

(b)iiAll rules of the State Board for Educator Certification relating to a transferred power or duty remain in effect as rules of the commissioner of education until amended or repealed by the commissioner.

(c)iiA contested case, rulemaking procedure, program, test, fee, contract, review, evaluation, sanction, act, or decision of the State Board for Educator Certification that is pending, completed, or in effect on the effective date of this article shall be deemed that of the commissioner of education to the extent authorized by Subchapter B, Chapter 21, Education Code, as amended by this article, or other law, until and unless a change is expressly made by the commissioner.

(d)iiA person who holds a certificate issued under Subchapter B, Chapter 21, Education Code, as it existed on January 1, 2005, may continue to practice under that certificate until the certificate is renewed or replaced under Subchapter B, Chapter 21, Education Code, as amended by this article.

(e)iiThe code of ethics adopted under Subchapter B, Chapter 21, Education Code, by the State Board for Educator Certification and in effect on the effective date of this article remains in effect until superseded by rules of the commissioner of education.

Amendment No. 3 was adopted.

Amendment No. 4

Representative Grusendorf offered the following amendment to CSSBi422:

Amend CSSB 422 as follows:

(1)iiStrike Sections 1.18 and 1.19 of the bill (house committee report, page 26, line 3, through page 27, line 2).

(2)iiIn Section 1.36 of the bill (house committee report, page 55, lines 21 and 22), strike "Subsections (d) and (e), Section 31.1011,".

(3)iiBetween Articles 2 and 3 of the bill (house committee report, page 92, between lines 8 and 9), insert the following new article, appropriately numbered, and renumber the subsequent articles accordingly:

ARTICLE ___. USE OF TECHNOLOGY IN PUBLIC SCHOOLS AND

ACQUISITION OF INSTRUCTIONAL MATERIALS

SECTIONi____.01.iiSubchapter B, Chapter 7, Education Code, is amended by adding Section 7.030 to read as follows:

Sec.i7.030.iiREVIEW OF STATE- AND FEDERALLY-FUNDED GRANT PROGRAMS. (a) The agency shall conduct a review of state- and federally-funded grant programs and incentives designed to improve student academic performance and shall actively determine the full extent to which funds awarded under those programs may be used to enhance or expand the use of

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4063

(b)iiNot later than December 1, 2006, the agency shall submit a report regarding the findings of the review conducted under this section to the legislature. The report must include a summary of promising practices for current grant programs that leverage technology. This section expires January 15, 2007.

SECTIONi____.02.iiSection 7.055(b)(28), Education Code, is amended to read as follows:

(28)iiThe commissioner shall perform duties relating to the funding, adoption, and purchase of instructional materials [textbooks] under Chapter 31.

SECTIONi____.03.iiSection 7.056(f), Education Code, is amended to read as follows:

(f)iiA school district or campus that is required to develop and implement a student achievement improvement plan under Section 39.131 or 39.132 may receive an exemption or waiver under this section from any law or rule other than:

(1)iia prohibition on conduct that constitutes a criminal offense;

(2)iia requirement imposed by federal law or rule;

(3)iia requirement, restriction, or prohibition imposed by state law or rule relating to:

(A)iipublic school accountability as provided by Subchapters B, C, D, and G, Chapter 39; or

(B)iieducator rights and benefits under Subchapters A, C, D, E, F, G, and I, Chapter 21, or under Subchapter A, Chapter 22; or

(4)ii[textbook] selection of instructional materials under Chapter 31.

SECTIONi____.04.iiSection 7.102(c)(23), Education Code, is amended to read as follows:

(23)iiThe board shall adopt and purchase or license instructional materials [textbooks] as provided by Chapter 31 and adopt rules required by that chapter.

SECTIONi____.05.iiSections 7.108(a) and (c), Education Code, are amended to read as follows:

(a)iiA person interested in selling bonds of any type or a person engaged in manufacturing, shipping, selling, or advertising instructional materials [textbooks] or otherwise connected with the instructional material [textbook] business commits an offense if the person makes or authorizes a political contribution to or takes part in, directly or indirectly, the campaign of any person seeking election to or serving on the board.

(c)iiIn this section:

(1)ii"Instructional material" has the meaning assigned by Section 31.002.

(2)ii"Political contribution" has the meaning assigned by Section 251.001, Election Code.

[(2)ii"Textbook" has the meaning assigned by Section 31.002.]

4064 79th LEGISLATURE — REGULAR SESSION

SECTIONi____.06.iiThe heading to Section 7.112, Education Code, is amended to read as follows:

Sec.i7.112.iiREPRESENTATION OF [TEXTBOOK] PUBLISHER OF INSTRUCTIONAL MATERIALS BY FORMER MEMBER OF BOARD.

SECTIONi____.07.iiSection 7.112(a), Education Code, is amended to read as follows:

(a)iiA former member of the State Board of Education who is employed by or otherwise receives compensation from a [textbook] publisher of instructional materials may not, before the second anniversary of the date on which the person last served as a member of the State Board of Education:

(1)iiconfer with a member of the board of trustees of a school district concerning instructional materials [a textbook] published by that [textbook] publisher; or

(2)iiappear at a meeting of the board of trustees on behalf of the [textbook] publisher.

SECTIONi____.08.iiSection 7.112(c)(2), Education Code, is amended to read as follows:

(2)ii"Instructional material" and "publisher" ["Publisher" and "textbook"] have the meanings assigned by Section 31.002.

SECTIONi____.09.iiSection 11.158(b), Education Code, is amended to read as follows:

(b)iiThe board may not charge fees for:

(1)iiinstructional materials [textbooks], workbooks, laboratory supplies, or other supplies necessary for participation in any instructional course except as authorized under this code;

(2)iifield trips required as a part of a basic education program or course;

(3)iiany specific form of dress necessary for any required educational program or diplomas;

(4)iithe payment of instructional costs for necessary school personnel employed in any course or educational program required for graduation;

(5)iilibrary materials [books] required to be used for any educational course or program, other than fines for lost, damaged, or overdue materials [books];

(6)iiadmission to any activity the student is required to attend as a prerequisite to graduation;

(7)iiadmission to or examination in any required educational course or program; or

(8)iilockers.

SECTIONi____.10.iiSection 11.164(a), Education Code, is amended to read as follows:

(a)iiThe board of trustees of each school district shall limit redundant requests for information and the number and length of written reports that a classroom teacher is required to prepare. A classroom teacher may not be required to prepare any written information other than:

(1)iiany report concerning the health, safety, or welfare of a student;

(2)iia report of a student's grade on an assignment or examination;

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(3)iia report of a student's academic progress in a class or course;

(4)iia report of a student's grades at the end of each grade reporting period;

(5)iia [textbook] report on instructional materials;

(6)iia unit or weekly lesson plan that outlines, in a brief and general manner, the information to be presented during each period at the secondary level or in each subject or topic at the elementary level;

(7)iian attendance report;

(8)iiany report required for accreditation review;

(9)iiany information required by a school district that relates to a complaint, grievance, or actual or potential litigation and that requires the classroom teacher's involvement; or

(10)iiany information specifically required by law, rule, or regulation.

SECTIONi____.11.iiSection 19.007(e), Education Code, is amended to read as follows:

(e)iiThe district may participate in the instructional materials [textbook] program under Chapter 31.

SECTIONi____.12.iiSections 26.006(a) and (c), Education Code, are amended to read as follows:

(a)iiA parent is entitled to:

(1)iireview all teaching materials, instructional materials [textbooks], and other teaching aids used in the classroom of the parent's child; and

(2)iireview each test administered to the parent's child after the test is administered.

(c)iiA student's parent is entitled to request that the public school [district or open-enrollment charter school] the student attends allow the student to take home any instructional materials [textbook] used by the student. Subject to the availability of the instructional materials [a textbook], the [district or] school shall honor the request. A student who takes home instructional materials [a textbook] must return the instructional materials [textbook] to school at the beginning of the next school day if requested to do so by the student's teacher. In this subsection, "instructional material" ["textbook"] has the meaning assigned by Section 31.002.

SECTIONi____.13.iiSections 28.002(c) and (h), Education Code, are amended to read as follows:

(c)iiThe State Board of Education, with the direct participation of educators, parents, business and industry representatives, and employers shall by rule identify the essential knowledge and skills of each subject of the required curriculum that all students should be able to demonstrate and that will be used in evaluating instructional materials [textbooks] under Chapter 31 and addressed on the assessment instruments required under Subchapter B, Chapter 39. As a condition of accreditation, the board shall require each district to provide instruction in the essential knowledge and skills at appropriate grade levels.

(h)iiThe State Board of Education and each school district shall foster the continuation of the tradition of teaching United States and Texas history and the free enterprise system in regular subject matter and in reading courses and in the adoption of instructional materials [textbooks]. A primary purpose of the public

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SECTIONi____.14.iiSubchapter A, Chapter 28, Education Code, is amended by adding Section 28.010 to read as follows:

Sec.i28.010.iiCOMPUTER-ADAPTIVE ASSESSMENT TOOLS. (a) The agency shall develop or acquire ongoing, computer-adaptive, interactive, assessment tools for each subject and grade level for which an assessment instrument is adopted under Section 39.023.

(b)iiFrom funds appropriated for the purpose, the agency shall make assessment tools developed or acquired under this section available to public schools at no cost.

SECTIONi____.15.iiThe heading to Chapter 31, Education Code, is amended to read as follows:

CHAPTER 31. INSTRUCTIONAL MATERIALS [TEXTBOOKS]

SECTIONi____.16.iiSection 31.001, Education Code, is amended to read as follows:

Sec.i31.001.iiFREE INSTRUCTIONAL MATERIALS [TEXTBOOKS]. Instructional materials [Textbooks] selected for use in the public schools shall be furnished without cost to the students attending those schools in accordance with Section 3(b), Article VII, Texas Constitution.

SECTIONi____.17.iiSections 31.002(1), (2), and (4), Education Code, are amended to read as follows:

(1)ii"Instructional material" ["Electronic textbook"] means a medium for conveying information to a student. The term includes a book, supplementary materials, a combination of a book and supplementary materials, computer software, interactive videodisc, magnetic media, CD-ROM, computer courseware, on-line services, an electronic medium, or other means of conveying information to the student or otherwise contributing to the learning process through electronic means.

(2)ii"Publisher" means a person who prepares instructional materials for sale or distribution to educational institutions. The term includes an on-line service or a developer or distributor of [an] electronic instructional materials [textbook].

(4)ii"Technological equipment" means hardware, a device, or equipment necessary for:

(A)iiinstructional use in the classroom, including to gain access to or enhance the use of [an] electronic instructional materials [textbook]; or

(B)iiprofessional use by a classroom teacher.

SECTIONi____.18.iiSection 31.003, Education Code, is amended to read as follows:

Sec.i31.003.iiRULES. The State Board of Education may adopt rules, consistent with this chapter, for the approval [adoption], requisition, distribution, care, use, and disposal of instructional materials [textbooks].

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SECTIONi____.19.iiThe heading to Subchapter B, Chapter 31, Education Code, is amended to read as follows:

SUBCHAPTER B. STATE APPROVAL

[FUNDING, ADOPTION, AND PURCHASE]

SECTIONi____.20.iiSubchapter B, Chapter 31, Education Code, is amended by adding Sections 31.0251 and 31.0252 to read as follows:

Sec.i31.0251.iiSUBMISSION OF INSTRUCTIONAL MATERIALS; AGENCY REVIEW. (a) A publisher may at any time submit an instructional material to the State Board of Education for approval. As part of a submission, a publisher must include a statement that identifies in writing the essential knowledge and skills for a subject and grade level as determined by the board under Section 28.002 that the instructional material covers.

(b)iiThe agency shall:

(1)iipromptly review each instructional material submitted for approval; and

(2)iidetermine whether the instructional material covers the essential knowledge and skills identified in the submission.

Sec.i31.0252.iiAPPROVAL BY STATE BOARD OF EDUCATION. (a) The State Board of Education shall meet quarterly to approve instructional materials submitted under Section 31.0251. The board must approve or reject each submitted instructional material not later than the second meeting held under this section after the date the instructional material was submitted.

(b)iiBy majority vote, the State Board of Education shall approve an instructional material submitted under Section 31.0251 unless the board determines, based on the agency's review or the board's own review, that the instructional material does not contain the essential knowledge and skills identified by the publisher in the submission. The board shall identify the essential knowledge and skills for a subject and grade level that an approved instructional material covers.

(c)iiEach approved instructional material must be free from factual errors.

(d)iiFor each subject and grade level, the board shall list the approved instructional materials. The board shall periodically:

(1)iireview each list of approved instructional materials; and

(2)iiby majority vote, remove approved instructional materials that the board determines no longer adequately cover the appropriate essential knowledge and skills.

SECTIONi____.21.iiSections 31.026-31.030, Education Code, are amended to read as follows:

Sec.i31.026.iiCONTRACT; PRICE.ii(a)iiThe Department of Information Resources may [State Board of Education shall] execute a contract[:

[(1)]iifor the purchase or licensing of each approved instructional material [adopted textbook other than an electronic textbook; and

[(2)iifor the purchase or licensing of each adopted electronic textbook].

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(b)iiA contract must require the publisher to provide all of the approved instructional materials [the number of textbooks] required by public schools [school districts] in this state for the term of the contract[, which must coincide with the board's adoption cycle].

(c)iiAs applicable, a contract must provide for the purchase or licensing of instructional materials [a textbook] at a [specific] price determined through negotiation between the publisher and the Department of Information Resources that does [, which may] not exceed the lowest price paid by any other state or any school or school district. The price must be fixed for the term of the contract.

(d)iiThe Department of Information Resources shall execute a blanket purchase order with the publisher of an approved instructional material. A school district or open-enrollment charter school may requisition instructional materials under the purchase order.

(e)iiThe agency and the Department of Information Resources shall enter into an interagency contract specifying each agency's duties regarding the purchasing and licensing of instructional materials.

(f)iiThe contract may allow the publisher of an approved instructional material to update the material as provided by Section 31.032.

Sec.i31.027.iiINFORMATION TO PUBLIC SCHOOLS [SCHOOL DISTRICTS]; SAMPLE COPIES. (a) A publisher shall provide each public school [district and open-enrollment charter school] with information that fully describes each of the publisher's approved instructional materials. [adopted textbooks. On request of a school district, a publisher shall provide a sample copy of an adopted textbook.]

(b)iiA publisher shall provide at least two sample copies of each approved instructional material [adopted textbook] to be maintained at each regional education service center.

Sec.i31.028.iiSPECIAL INSTRUCTIONAL MATERIALS [TEXTBOOKS]. (a) The State Board of Education may provide for [purchase] special instructional materials [textbooks] for the education of blind and visually impaired students in public schools. In addition, for a teacher who is blind or visually impaired, the board shall provide a teacher's edition in Braille or large type, as requested by the teacher, for each printed instructional material [textbook] the teacher uses in the instruction of students. The printed teacher edition must be available at the same time the printed student instructional materials [textbooks] become available.

(b)iiThe publisher of an approved printed instructional material [adopted textbook] shall provide the agency with computerized [textbook] files for the production of Braille instructional materials [textbooks] or other versions of instructional materials [textbooks] to be used by students with disabilities, on request of the State Board of Education. A publisher shall arrange the computerized [textbook] files in one of several optional formats specified by the State Board of Education.

(c)iiThe board shall require electronic instructional materials submitted for approval under Section 31.0251 to comply with the standards established under Section 508, Rehabilitation Act of 1973 (29 U.S.C. Section 794d) [may also enter

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(1)iipublic schools; or

(2)iiprivate nonprofit schools, if state funds, other than for administrative costs, are not involved.

(d)iiIn this section:

(1)ii"Blind or visually impaired student" includes any student whose visual acuity is impaired to the extent that the student is unable to read the text [print] in [a] regularly approved instructional materials [adopted textbook] used in the student's class.

(2)ii"Special instructional materials" [textbook"] means instructional materials [a textbook] in Braille, large type or any other medium or any apparatus that conveys information to a student or otherwise contributes to the learning process.

Sec.i31.029.iiBILINGUAL INSTRUCTIONAL MATERIALS [TEXTBOOKS]. The board shall approve instructional materials [purchase or otherwise acquire textbooks] for use in bilingual education classes.

Sec.i31.030.iiUSED INSTRUCTIONAL MATERIALS [TEXTBOOKS]. The State Board of Education shall adopt rules to ensure that used instructional materials [textbooks] sold to school districts and open-enrollment charter schools are not sample copies that contain factual errors. The rules may provide for the imposition of an administrative penalty in accordance with Section 31.151 against a seller of used instructional materials [textbooks] who knowingly violates this section.

SECTIONi____.22.iiSubchapter B, Chapter 31, Education Code, is amended by adding Sections 31.031 and 31.032 to read as follows:

Sec.i31.031.iiSUBSCRIPTION-BASED ELECTRONIC INSTRUCTIONAL MATERIALS. The publisher of an approved electronic instructional material may offer the material to public schools on an annual subscription basis.

Sec.i31.032.iiUPDATING INSTRUCTIONAL MATERIALS. The publisher of an approved instructional material may, under the terms of a contract under Section 31.026, update the instructional material. The State Board of Education by rule shall provide for an expedited review process to determine the extent to which an updated instructional material:

(1)iiis aligned with the essential knowledge and skills for the subject and grade level; and

(2)iidoes not contain factual errors.

SECTIONi____.23.iiSubchapter C, Chapter 31, Education Code, is amended by adding Sections 31.1012 and 31.1013 to read as follows:

Sec.i31.1012.iiLOCAL SELECTION AND PURCHASE. (a) A school district or open-enrollment charter school shall:

(1)iiselect the instructional materials to be used by the district or school; and

4070 79th LEGISLATURE — REGULAR SESSION

(2)iiusing funds allotted under Section 32.005 or other funds that may be used for the purpose, purchase those materials:

(A)iidirectly from the publisher of the materials; or

(B)iithrough the Department of Information Resources.

(b)iiA school district or open-enrollment charter school is not required to select an instructional material that is approved by the State Board of Education.

Sec.i31.1013.iiCERTIFICATION OF PROVISION OF INSTRUCTIONAL MATERIALS. Each school district and open-enrollment charter school shall annually certify to the agency that, for each subject in the required curriculum and each grade level, the district or school provides each student with instructional materials that are aligned with the essential knowledge and skills adopted by the State Board of Education for that subject and grade level.

SECTIONi____.24.iiSection 31.102, Education Code, is amended to read as follows:

Sec.i31.102.iiTITLE AND CUSTODY. (a) Each instructional material [textbook] purchased as provided by this chapter is the property of this state.

(b)iiSubsection (a) applies to an electronic instructional material [textbook] only to the extent of any applicable licensing agreement.

(c)iiThe board of trustees of a school district or the governing body of an open-enrollment charter school is the legal custodian of instructional materials [textbooks] purchased as provided by this chapter for the district or school. The board of trustees or governing body shall distribute instructional materials [textbooks] to students in the manner that the board or governing body determines is most effective and economical.

SECTIONi____.25.iiSections 31.104-31.106, Education Code, are amended to read as follows:

Sec.i31.104.iiDISTRIBUTION AND HANDLING. (a) The board of trustees of a school district or the governing body of an open-enrollment charter school may delegate to an employee the authority to requisition, distribute, and manage the inventory of instructional materials [textbooks] in a manner consistent with this chapter and rules adopted under this chapter.

(b)iiA school district or open-enrollment charter school may order replacements for instructional materials [textbooks] that have been lost or damaged directly from[:

[(1)iithe textbook depository; or

[(2)]iithe [textbook] publisher of the instructional materials [or manufacturer if the textbook publisher or manufacturer does not have a designated textbook depository in this state under Section 31.151(a)(6)(B)].

(c)iiEach instructional material [textbook] must state that the instructional material [textbook] is the property of or is licensed to this state, as appropriate. The board may require the publisher of a textbook that must be returned by a student under Subsection (d) to place a bar code with a unique identifying number on the textbook. Each instructional material [textbook], other than an electronic instructional material [textbook], must be covered by the student under

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(d)iiEach student, or the student's parent or guardian, is responsible for each instructional material [textbook] not returned by the student. A student who fails to return all instructional materials [textbooks] forfeits the right to free instructional materials [textbooks] until each instructional material [textbook] previously issued but not returned is paid for by the student, parent, or guardian. As provided by policy of the board of trustees or governing body, a school district or open-enrollment charter school may waive or reduce the payment requirement if the student is from a low-income family. The district or school shall allow the student to use instructional materials [textbooks] at school during each school day. If an instructional material [a textbook] is not returned or paid for, the district or school may withhold the student's records. A district or school may not, under this subsection, prevent a student from graduating, participating in a graduation ceremony, or receiving a diploma.

(e)iiThe board of trustees of a school district may not require an employee of the district to pay for an instructional material [a textbook] or instructional technology that is stolen, misplaced, or not returned by a student.

Sec.i31.105.iiSALE, EXCHANGE, OR LOAN OF INSTRUCTIONAL MATERIALS [TEXTBOOKS]. (a) The board of trustees of a school district or governing body of an open-enrollment charter school may sell instructional materials [textbooks], other than electronic instructional materials [textbooks], to a student or another school at a [the state contract] price determined by board rule. Money [The district shall send money] from the sale of instructional materials may be used only to purchase items that may be purchased lawfully using the allotment provided by Section 32.005.

(b)iiSubject to any applicable licensing agreement, the board of trustees of a school district or governing body of an open-enrollment charter school may:

(1)iiexchange instructional materials with another school district or open-enrollment charter school; or

(2)iiloan instructional materials to another school district or open-enrollment charter school [textbooks to the commissioner as required by the commissioner. The commissioner shall deposit the money in the state textbook fund].

Sec.i31.106.iiUSE OF LOCAL FUNDS. A [In addition to any textbook selected under this chapter, a] school district or open-enrollment charter school may use local funds to purchase any instructional materials [textbooks].

SECTIONi____.26.iiThe heading to Section 31.151, Education Code, is amended to read as follows:

Sec.i31.151.iiDUTIES OF PUBLISHERS [AND MANUFACTURERS].

SECTIONi____.27.iiSections 31.151(a), (b), and (d), Education Code, are amended to read as follows:

(a)iiA publisher [or manufacturer] of instructional materials [textbooks]:

4072 79th LEGISLATURE — REGULAR SESSION

(1)iishall furnish any instructional material [textbook] the publisher [or manufacturer] offers in this state[,] at a price that does not exceed the lowest price at which the publisher offers that instructional material [textbook] for adoption or sale to any state, public school, or school district in the United States;

(2)iishall automatically reduce the price of an instructional material [a textbook] sold for use in a public school [district or open-enrollment charter school] to the extent that the price is reduced elsewhere in the United States;

(3)iishall provide any instructional material [textbook] or ancillary item free of charge in this state to the same extent that the publisher [or manufacturer] provides the instructional material [textbook] or ancillary item free of charge to any state, public school, or school district in the United States;

(4)iishall guarantee that each copy of an instructional material [a textbook] sold in this state is at least equal in quality to copies of that instructional material [textbook] sold elsewhere in the United States and is free from factual error;

(5)iimay not become associated or connected with, directly or indirectly, any combination in restraint of trade in instructional materials [textbooks] or enter into any understanding or combination to control prices or restrict competition in the sale of instructional materials [textbooks] for use in this state;

(6)iishall[:

[(A)iimaintain a depository in this state or arrange with a depository in this state to receive and fill orders for textbooks, other than on-line textbooks or on-line textbook components, consistent with State Board of Education rules; or

[(B)]iideliver instructional materials [textbooks] to a public school [district or open-enrollment charter school] without a delivery charge to the school [district, open-enrollment charter school,] or state[, if:

[(i)iithe publisher or manufacturer does not maintain or arrange with a depository in this state under Paragraph (A) and the publisher's or manufacturer's textbooks and related products are warehoused or otherwise stored less than 300 miles from a border of this state; or

[(ii)iithe textbooks are on-line textbooks or on-line textbook components];

(7)iishall, at the time an order for instructional materials [textbooks] is acknowledged, provide to public [school districts or open-enrollment charter] schools an accurate shipping date for instructional materials [textbooks] that are back-ordered;

(8)iishall guarantee delivery of instructional materials [textbooks] at least 10 business days before the opening day of school of the year for which the instructional materials [textbooks] are ordered if the instructional materials [textbooks] are ordered by a date specified in the sales contract; and

(9)iishall submit to the State Board of Education an affidavit certifying any instructional material [textbook] the publisher [or manufacturer] offers in this state to be free of factual errors at the time the publisher executes the contract required by Section 31.026.

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(b)iiThe State Board of Education may impose a reasonable administrative penalty against a publisher [or manufacturer] who knowingly violates Subsection (a). The board shall provide for a hearing to be held to determine whether a penalty is to be imposed and, if so, the amount of the penalty. The board shall base the amount of the penalty on:

(1)iithe seriousness of the violation;

(2)iiany history of a previous violation;

(3)iithe amount necessary to deter a future violation;

(4)iiany effort to correct the violation; and

(5)iiany other matter justice requires.

(d)iiA penalty collected under this section shall be deposited to the credit of the foundation school [state textbook] fund.

SECTIONi____.28.iiThe heading to Section 31.152, Education Code, is amended to read as follows:

Sec.i31.152.iiACCEPTING REBATE ON INSTRUCTIONAL MATERIALS [TEXTBOOKS].

SECTIONi____.29.iiSections 31.152(a), (b), and (d), Education Code, are amended to read as follows:

(a)iiA school trustee, administrator, or teacher commits an offense if that person receives any commission or rebate on any instructional materials [textbooks] used in the schools with which the person is associated as a trustee, administrator, or teacher.

(b)iiA school trustee, administrator, or teacher commits an offense if the person accepts a gift, favor, or service that:

(1)iiis given to the person or the person's school;

(2)iimight reasonably tend to influence a trustee, administrator, or teacher in the selection of instructional materials [a textbook]; and

(3)iicould not be lawfully purchased with state instructional materials funds [from the state textbook fund].

(d)iiIn this section, "gift, favor, or service" does not include:

(1)iistaff development, in-service, or teacher training; or

(2)iiancillary [instructional] materials, such as maps or worksheets, that convey information to the student or otherwise contribute to the learning process.

SECTIONi____.30.iiThe heading to Section 31.153, Education Code, is amended to read as follows:

Sec.i31.153.iiVIOLATION OF FREE INSTRUCTIONAL MATERIALS [TEXTBOOK] LAW.

SECTIONi____.31.iiSection 31.153(a), Education Code, is amended to read as follows:

(a)iiA person commits an offense if the person knowingly violates any law providing for the purchase or distribution of free instructional materials [textbooks] for the public schools.

SECTIONi____.32.iiSubchapter E, Chapter 31, Education Code, is amended to read as follows:

4074 79th LEGISLATURE — REGULAR SESSION

SUBCHAPTER E. DISPOSITION OF

INSTRUCTIONAL MATERIALS [TEXTBOOKS]

Sec.i31.201.iiDISPOSITION OF INSTRUCTIONAL MATERIALS [TEXTBOOKS]. (a) The commissioner, with the approval of the State Board of Education, may provide for the disposition of:

(1)iiinstructional materials [textbooks], other than electronic instructional materials [textbooks], that are no longer in acceptable condition to be used for instructional purposes; or

(2)iidiscontinued instructional materials [textbooks], other than electronic instructional materials [textbooks].

(b)iiThe commissioner, as provided by rules adopted by the State Board of Education, shall make available on request copies of discontinued instructional materials [textbooks], other than electronic instructional materials [textbooks], for use in libraries maintained in municipal and county jails and facilities of the institutional division of the Texas Department of Criminal Justice and other state agencies.

(c)iiThe State Board of Education shall adopt rules under which a public school [district or open-enrollment charter school] may donate discontinued instructional materials [textbooks], other than electronic instructional materials [textbooks], to a student, to an adult education program, or to a nonprofit organization.

SECTIONi____.33.iiSubchapter A, Chapter 32, Education Code, is amended by adding Section 32.0011 to read as follows:

Sec.i32.0011.iiADVISORY COMMITTEE FOR TECHNOLOGY AND IMPLEMENTATION. (a) The commissioner, in consultation with the lieutenant governor, the speaker of the house of representatives, and the presiding officers of the standing committees of the senate and the house of representatives with jurisdiction over the agency, shall appoint an advisory committee of business, education, and public members to assist the agency and permit the agency to monitor changing technology in business, industry, and education.

(b)iiThe advisory committee is subject to Chapters 551 and 552, Government Code.

SECTIONi____.34.iiSections 32.002 and 32.003, Education Code, are amended to read as follows:

Sec.i32.002.iiAUTHORITY OF PUBLIC SCHOOL [DISTRICT]. A public school [district] is not required by this subchapter to acquire or use technology that has been approved, selected, or contracted for by the State Board of Education or the commissioner.

Sec.i32.003.iiAUTHORITY OF COMMISSIONER TO CONTRACT. The commissioner may contract with developers of technology to supply technology for use by public schools [school districts] throughout this state.

SECTIONi____.35.iiThe heading to Section 32.005, Education Code, is amended to read as follows:

Sec.i32.005.iiINSTRUCTIONAL MATERIALS AND TECHNOLOGY ALLOTMENT.ii

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SECTIONi____.36.iiEffective September 1, 2005, Section 32.005, Education Code, is amended by amending Subsections (a) and (b) and adding Subsection (a-1) to read as follows:

(a)iiEach school district or open-enrollment charter school is entitled to an allotment of $70 [$30] for each student in average daily attendance or a different amount for any year provided by appropriation.

(a-1)iiFrom the funds a school district receives under Subsection (a), the district shall use an amount equal to $40 for each student in average daily attendance to fund targeted technology programs under Section 32.006. A school district shall use funds for targeted technology programs in a manner that allows each student and teacher assigned to a targeted campus, grade level on a campus, or specific educational program to benefit from a targeted technology program. The commissioner shall adopt rules concerning the use of funds under this subsection. This subsection expires September 1, 2006.

(b)iiAn allotment under this section may be used only to:

(1)iiprovide for the purchase by school districts and open-enrollment charter schools of instructional materials [electronic textbooks] or technological equipment that contributes to student learning; and

(2)iipay for training educational personnel directly involved in student learning in the appropriate use of electronic instructional materials [textbooks] and for providing for access to technological equipment for instructional use.

SECTIONi____.37.iiEffective September 1, 2006, Section 32.005, Education Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a)iiEach school district or open-enrollment charter school is entitled to an allotment of $150 [$30] for each student in average daily attendance or a different amount for any year provided by appropriation.

(a-1)iiFrom the funds a school district receives under Subsection (a), the district shall use an amount equal to $60 for each student in average daily attendance to fund targeted technology programs under Section 32.006. A school district shall use funds for targeted technology programs in a manner that allows each student and teacher assigned to a targeted campus, grade level on a campus, or specific educational program to benefit from a targeted technology program. The commissioner shall adopt rules concerning the use of funds under this subsection.

SECTIONi____.38.iiSubchapter A, Chapter 32, Education Code, is amended by adding Sections 32.006 and 32.007 to read as follows:

Sec.i32.006.iiTARGETED TECHNOLOGY PROGRAMS. (a) Each school district shall use funds designated for targeted technology programs under Section 32.005(a-1) in accordance with this section and in a manner consistent with the long-range plan developed by the State Board of Education under Section 32.001 and the district's own technology plan. A school district may use funds from other sources, including grants, donations, and state and federal funds, to provide targeted technology programs.

(b)iiA targeted technology program must provide for each student and teacher at a targeted campus or grade level on a targeted campus:

4076 79th LEGISLATURE — REGULAR SESSION

(1)iithe provision of:

(A)iiwireless electronic mobile computing devices;

(B)iiproductivity software and hardware, including writing, computation, presentation, printing, and communication tools;

(C)iielectronic learning software aligned with the essential knowledge and skills adopted by the State Board of Education under Section 28.002;

(D)iilibrary and other research tools;

(E)iielectronic assessment tools;

(F)iielectronic learning tools to improve communications among students, teachers, school administrators, parents, and the community; and

(G)iiclassroom management systems;

(2)iiprofessional development for teachers to integrate the tools and solutions described by Subdivision (1); or

(3)iithe provision of other infrastructure, components, and technologies to support and enhance student performance through individual instruction programs.

(c)iiThe Legislative Budget Board shall:

(1)iiconduct a biennial study of the cost of school district targeted technology programs, including the cost of implementing those programs on a statewide basis; and

(2)iibased on the results of the study required by Subdivision (1), make recommendations to the legislature before the beginning of each regular session of the legislature concerning statewide implementation of targeted technology programs.

(d)iiEach biennium, the Legislative Budget Board and the commissioner shall jointly conduct a performance evaluation of school district targeted technology programs.

Sec.i32.007.iiAGREEMENT WITH PUBLIC BROADCASTING STATION. (a) The commissioner may enter into an agreement with a public broadcasting station, or a consortium of public broadcasting stations, under which the station or consortium will provide online instructional content and educational materials.

(b)iiFrom funds appropriated to the agency, the commissioner may, under an agreement entered into under Subsection (a), make instructional materials available through public broadcasting stations for purposes of instruction and professional development and for use in providing adult-based education.

(c)iiAn agreement entered into under Subsection (a) must, to the extent practicable, provide access to instructional materials and online content to persons located in all parts of this state.

(d)iiFor purposes of providing high-quality online instructional materials under this section, the commissioner may:

(1)iiuse federal funds that may be used for those purposes; or

(2)iiuse unexpended balances of funds appropriated to the agency for educational purposes, including adult education.

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SECTIONi____.39.iiSection 32.156, Education Code, as added by Chapter 1216, Acts of the 78th Legislature, Regular Session, 2003, is amended to read as follows:

Sec.i32.156.iiON-LINE INSTRUCTIONAL MATERIALS [TEXTBOOKS]. (a) The agency may develop and adopt strategies for making instructional materials [textbooks] available through the portal or through other means in an electronic format as an alternative or supplement to traditional instructional materials [textbooks].

(b)iiIn developing and adopting strategies under this section, the agency shall seek to achieve a system under which a student may, in addition to [a] traditional instructional materials [textbook], be provided with secure Internet access to each instructional material [textbook] used by the student.

SECTIONi____.40.iiSection 32.161(b), Education Code, is amended to read as follows:

(b)iiTo the extent possible considering other statutory requirements, the commissioner and agency shall encourage the use of instructional materials [textbook funds] and technology allotment funds under Section 32.005 [31.021(b)(2)] in a manner that facilitates the development and use of the portal.

SECTIONi____.41.iiSubchapter B, Chapter 39, Education Code, is amended by adding Section 39.0233 to read as follows:

Sec.i39.0233.iiCOMPUTER-ADAPTIVE ASSESSMENT. (a) To the extent practicable and appropriate, the agency shall provide for assessment instruments required under Section 39.023 to be designed so that those assessment instruments can be computer-adaptive.

(b)iiTo the extent practicable and appropriate, the agency shall require school districts to administer to students the computer-adaptive assessment instruments.

(c)iiThe commissioner may adopt rules to implement this section.

(d)iiAs necessary to implement this section, the commissioner by rule may delay the release of assessment instrument questions and answer keys under Section 39.023(e).

(e)iiThe agency shall implement this section not later than May 1, 2007. This subsection expires September 1, 2007.

SECTIONi____.42.iiSection 41.124(c), Education Code, is amended to read as follows:

(c)iiA school district that receives tuition for a student from a school district with a wealth per student that exceeds the equalized wealth level may not claim attendance for that student for purposes of Chapters 42 and 46 and the instructional materials and technology allotment under Section 32.005 [31.021(b)(2)].

SECTIONi____.43.iiSubchapter B, Chapter 44, Education Code, is amended by adding Section 44.046 to read as follows:

Sec.i44.046.iiPURCHASE OF INSTRUCTIONAL MATERIALS. Notwithstanding Section 44.031, a public school may purchase instructional materials, as defined by Section 31.002, under a blanket purchase order executed by the Department of Information Resources under Section 31.026.

4078 79th LEGISLATURE — REGULAR SESSION

SECTIONi____.44.iiSections 31.002(3), 31.021, 31.022, 31.023, 31.024, 31.025, 31.101, 31.103, and 31.1031, Education Code, are repealed.

(4)iiStrike Section 3.01 of the bill (house committee report, page 92, lines 10-14) and substitute the following section, appropriately numbered:

SECTIONi____.01.iiExcept as otherwise provided by this Act, 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, 2005, except as otherwise provided by this Act.

Amendment No. 4 was withdrawn.

Amendment No. 5

Representative Grusendorf offered the following amendment to CSSBi422:

Amend CSSB 422 (committee report) as follows:

1) Strike SECTION 1.18.

2) Strike SECTION 1.19.

Amendment No. 5 was adopted.

Amendment No. 6

Representative Grusendorf offered the following amendment to CSSBi422:

Amend CSSB 422 as follows:

(1) On page ____, line ____ insert the following:

"The Urban School Choice Pilot Program described by this subchapter shall not be expanded, modified or amended in any way except by an Act of the Texas Legislature."

(2) On page ____, line ____ insert the following:

"No portion of the Urban School Choice Pilot Program described by this subchapter shall result in a reduction in funding for non-eligible or non-participating districts."

(3) On page ____, line ____ strike the existing subsection (E) and substitute the following new subsection (E) and (F):

"(E) has been or is currently placed in a foster home or child care institution as defined by Chapter 42, Human Resources Code, pursuant to Subchapter B, 264 Family Code.;

(F) resides in a household in which the annual household income, according to the most recently filed federal income tax return, did not exceed 200 percent of the qualifying income for a reduced-price lunch under the national free or reduced-price lunch program established under 42 U.S.C. Section 1751 et seq."

(4) On page ____, between lines ____ and ____ insert a new subsection (1) to read as follows:

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"(1) resides in a household in which the annual household income, according to the most recently filed federal income tax return, did not exceed 200 percent of the qualifying income for a reduced-price lunch under the national free or reduced-price lunch program established under 42 U.S.C. Section 1751 et seq."

(5) On page ____, line ____ strike "(1)" and substitute "(A)".

(6) On page ____, line ____ strike "(2)" and substitute "(B)".

(7) On page ____, line ____ strike "(3)" and substitute "(2)".

Amendment No. 6 was withdrawn.

Amendment No. 7

Representative Grusendorf offered the following amendment to CSSBi422:

Amend CSSB 422 (House committee printing) as follows:

(1)iiStrike SECTION 2.44 (page 87, lines 10 through 16), and renumber the subsequent SECTIONS of Article 2 accordingly.

(2)iiIn Article 2 of the bill, add the following appropriately numbered SECTIONS and renumber the subsequent SECTIONS of Article 2 accordingly:

SECTIONi2.__.iiSubchapter C, Chapter 1001, Education Code, is amended by adding Section 1001.109 to read as follows:

Sec.i1001.109.iiDRIVER EDUCATION IN PUBLIC SCHOOLS. (a) The commission shall develop a program of organized instruction in driver education and traffic safety for public school students. A student who will be 15 years of age or older before a driver education and traffic safety course ends may enroll in the course.

(b)iiThe commission shall establish standards for the certification of professional and paraprofessional personnel who conduct the programs in the public schools.

SECTIONi2.__.iiSection 521.204(a), Transportation Code, is amended to read as follows:

(a)iiThe department may issue a Class C driver's license to an applicant under 18 years of age only if the applicant:

(1)iiis 16 years of age or older;

(2)iihas submitted to the department a driver education certificate issued under Section 1001.055, Education Code [9A, Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon's Texas Civil Statutes)], that states that the person has completed and passed a driver education course approved by the department under Section 521.205 or by the Texas Department of Licensing and Regulation [Education Agency];

(3)iihas obtained a high school diploma or its equivalent or is a student:

(A)iienrolled in a public school, home school, or private school who attended school for at least 80 days in the fall or spring semester preceding the date of the driver's license application; or

(B)iiwho has been enrolled for at least 45 days, and is enrolled as of the date of the application, in a program to prepare persons to pass the high school equivalency exam; and

(4)iihas passed the examination required by Section 521.161.

4080 79th LEGISLATURE — REGULAR SESSION

SECTIONi2.__.iiSections 521.222(a) and (c), Transportation Code, are amended to read as follows:

(a)iiThe department or a driver education school licensed under Chapter 1001, Education Code, [the Texas Driver and Traffic Safety Education Act (Article 4413(29c), Vernon's Texas Civil Statutes)] may issue an instruction permit, including a Class A or Class B driver's license instruction permit, to a person who:

(1)iiis 15 years of age or older but under 18 years of age;

(2)iihas satisfactorily completed and passed the classroom phase of an approved driver education course, which may be a course approved under Section 521.205;

(3)iimeets the requirements imposed under Section 521.204(3); and

(4)iihas passed each examination required under Section 521.161 other than the driving test.

(c)iiA driver education school may issue an instruction permit to a person 18 years of age or older who has successfully passed:

(1)iia six-hour adult classroom driver education course approved by the Texas Department of Licensing and Regulation [Education Agency]; and

(2)iieach part of the driver's examination required by Section 521.161 other than the driving test.

(3)iiIn SECTION 2.48, between "Sections" and "1001.152" (page 89, line 3), insert "7.021(b)(9), 29.902, 51.308,".

Amendment No. 7 was withdrawn.

Amendment No. 8

Representative Grusendorf offered the following amendment to CSSBi422:

Amend CSSB 422 (house committee report) in Article 1 of the bill by inserting the following new section, appropriately numbered, and renumbering the subsequent sections of Article 1 of the bill accordingly:

SECTION 1.____. Subchapter A, Chapter 32, Education Code, is amended by adding Section 32.007 to read as follows:

Sec.i32.007.iiAGREEMENT WITH PUBLIC BROADCASTING STATION. (a) The commissioner may enter into an agreement with a public broadcasting station, or a consortium of public broadcasting stations, under which the station or consortium will provide online instructional content and educational materials.

(b)iiFrom funds appropriated to the agency, the commissioner may, under an agreement entered into under Subsection (a), make instructional materials available through public broadcasting stations for purposes of instruction and professional development and for use in providing adult-based education.

(c)iiAn agreement entered into under Subsection (a) must, to the extent practicable, provide access to instructional materials and online content to persons located in all parts of this state.

(d)iiFor purposes of providing high-quality online instructional materials under this section, the commissioner may:

(1)iiuse federal funds that may be used for those purposes; or

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4081

(2)iiuse unexpended balances of funds appropriated to the agency for educational purposes, including adult education.

Amendment No. 8 was adopted.

Amendment No. 9

Representative Grusendorf offered the following amendment to CSSBi422:

Amend CSSB 422 (house committee report) in Article 1 of the bill by inserting the following new section, appropriately numbered, and renumbering the subsequent sections of Article 1 of the bill accordingly:

SECTIONi1.__.iiSubchapter B, Chapter 7, Education Code, is amended by adding Section 7.030 to read as follows:

Sec.i7.030.iiREVIEW OF STATE- AND FEDERALLY-FUNDED GRANT PROGRAMS. (a) The agency shall conduct a review of state- and federally-funded grant programs and incentives designed to improve student academic performance and shall actively determine the full extent to which funds awarded under those programs may be used to enhance or expand the use of technology in public schools. For purposes of removing barriers to and encouraging the use of technology in public schools, the commissioner may, as appropriate, issue a waiver to one or more schools.

(b)iiNot later than December 1, 2006, the agency shall submit a report regarding the findings of the review conducted under this section to the legislature. The report must include a summary of promising practices for current grant programs that leverage technology. This section expires January 15, 2007.

Amendment No. 9 was adopted.

Amendment No. 10

Representative Grusendorf offered the following amendment to CSSBi422:

Amend CSSB 422 (committee report) by adding the following appropriately numbered SECTIONS to the bill and renumbering the subsequent SECTIONS accordingly:

SECTION __. Section 29.005, Education Code, is amended by adding Subsection (e) to read as follows:

(e) The commissioner by rule may require a school district to include in the individualized education program of a student with autism or another pervasive developmental disorder any information or requirement authorized under the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.).

SECTION __. Subchapter A, Chapter 29, Education Code, is amended by adding Section 29.0051 to read as follows:

Sec. 29.0051. STUDY OF RULE CONCERNING CONTENT OF INDIVIDUALIZED EDUCATION PROGRAM FOR STUDENT WITH PERVASIVE DEVELOPMENT DISORDER. (a) The agency shall establish a committee composed of parents of students with autism or other pervasive developmental disorders, teachers, school administrators, and other interested persons to study the rule concerning the content of an individualized education program for a student with autism or another pervasive developmental disorder

4082 79th LEGISLATURE — REGULAR SESSION

(b) In studying the rule, the committee shall consider whether any other considerations, such as applied behavior analysis, communication training, or the use of inclusive settings, should be included in the rule.

(c) Not later than July 1, 2006, the committee shall recommend to the commissioner any necessary changes to the rule.

(d) This section expires August 1, 2006.

Amendment No. 10 was adopted.

Amendment No. 11

Representative Hochberg offered the following amendment to CSSBi422:

Amend CSSB 422 as follows:

(1) On page 1, strike Section 1.01.

(2) On page 2, line 1 strike "2017" and substitute "2007"

(3) Strike Sections 1.03 through 1.39 (page 2, line 2 through page 58, line 2) and renumber the remaining sections of the bill accordingly.

Amendment No. 12

Representative Hochberg offered the following amendment to Amendment No.i11:

Amend Amendment No. 11 by Hochberg to CSSB 422 by striking all language (lines 1-6) and substituting the following:

Amend CSSB 422 as follows:

(1) On page 1, strike Section 1.01.

(2) On page 2, line 1 strike "2017" and substitute "2007"

(3) Strike Sections 1.03 through 1.12 (page 2, line 2 through page 12, line 8).

(4) Strike Sections 1.14 through 1.39 (page 12, line 26 through page 58, line 2).

(5) Renumber the remaining sections of the bill accordingly.

Amendment No. 12 was adopted.

Representative Grusendorf moved to table Amendment No. 11.

A record vote was requested.

The vote of the house was taken on the motion to table Amendment No. 11 and the vote was announced yeas 73, nays 70.

A verification of the vote was requested and was granted.

The roll of those voting yea and nay was again called and the verified vote resulted, as follows (Record 771): 72 Yeas, 71 Nays, 0 Present, not voting.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4083

Yeas — Mr. Speaker(C); Allen, R.; Anderson; Baxter; Berman; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Chisum; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Delisi; Denny; Eissler; Elkins; Flynn; Gattis; Goodman; Grusendorf; Haggerty; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hupp; Isett; Jackson; Keffer, B.; Keffer, J.; King, P.; Kolkhorst; Krusee; Laubenberg; Madden; McCall; Miller; Morrison; Mowery; Nixon; Orr; Otto; Paxton; Phillips; Pitts; Reyna; Riddle; Seaman; Smith, T.; Smith, W.; Solomons; Straus; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wong; Woolley; Zedler.

Nays — Allen, A.; Alonzo; Anchia; Blake; Burnam; Casteel; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Dawson; Deshotel; Dukes; Dunnam; Edwards; Eiland; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goolsby; Griggs; Guillen; Hamilton; Herrero; Hochberg; Homer; Hopson; Hunter; Jones, D.; Jones, J.; Keel; King, T.; Kuempel; Laney; Leibowitz; Luna; Martinez; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, P.; Naishtat; Noriega, M.; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Rose; Solis; Strama; Thompson; Turner; Uresti; Veasey; Villarreal; Vo.

Absent, Excused — Driver; Hodge.

Absent — Bailey; Bonnen; Dutton; Smithee.

The speaker stated that the motion to table prevailed by the above vote.

STATEMENT OF VOTE

When Record No. 771 was taken, I was absent because of illness in the family. Had I been present I would have voted no.

Bonnen

I was shown voting yes on Record No. 771. I intended to vote no.

Hardcastle

When Record No. 771 was taken, I was temporarily out of the house chamber. I would have voted yes.

Smithee

LEAVES OF ABSENCE GRANTED

The following member was granted leave of absence for the remainder of today because of illness in the family:

Bonnen on motion of Keel.

The following members were granted leaves of absence for the remainder of today because of important business in the district:

Bailey on motion of Luna.

The following member was granted leave of absence temporarily for today because of important business in the district:

Dutton on motion of Geren.

4084 79th LEGISLATURE — REGULAR SESSION

BILLS AND RESOLUTIONS SIGNED BY THE SPEAKER

Notice was given at this time that the speaker had signed bills and resolutions in the presence of the house (see the addendum to the daily journal, Signed by the Speaker, Senate List No. 27).

CSSB 422 - (consideration continued)

CSSB 422 - POINT OF ORDER

Representative Dunnam raised a point of order against further consideration of CSSB 422 under Rule 4, Section 34(b)(1) of the House Rules on the grounds that the committee report does not include a criminal justice impact statement.

The speaker overruled the point of order, and had read the following statement:

Mr. Dunnam raised a point of order against further consideration of CSSBi422 on the grounds that the House Committee Report does not include a criminal justice impact statement. Mr. Dunnam refers to the section of the bill which provides that a person creates an offense if the person "intentionally destroys, conceals, or tampers with a record that is required to be preserved, transferred, or surrendered."

The chair overrules the point of order based on longstanding precedent and practice it is within the discretion of the chair to determine whether an impact statement is required. In fact, Rule 4, Section 34 affirmatively places such a burden on the chair only if the chair determines that a bill or resolution authorizes or requires a change in sanctions applicable to adults convicted of felony crimes. (See 74 Regular Session House Journal 3038; 74 Regular Session House Journal 3309; 78 Regular Session House Journal 860; 78 Regular Session House Journal 1987; 78 Regular Session House Journal 3982; 74th Regular Session House Journal 2474.)

Even if the chair accepted Mr. Dunnam's analysis, the chair notes that merely referencing a provision in the Penal Code does not make the conduct an offense under the code, and in this case, would not necessarily make the conduct a felony. In every instance, it is the elements of the offense, as cited in the Penal Code that must be alleged and proven with specificity.

Therefore, the point of order is respectfully overruled.

MEMORANDUM BY REPRESENTATIVE DUNNAM

Rule 4, Section 34 requires that "all members of the house are timely informed as to the impact of proposed legislation on the state or other unit of government".

Rule 4, Section 34(b)(1) states the committee "chair shall send a copy of the measure to the Legislative Budget Board for the preparation of a criminal justice impact statement" if the measure "authorizes or requires a change in the sanctions applicable to adults convicted of felony crimes."

In Section 39.1331 of CSSB 422 (page 52, lines 17-20), a felony offense is created.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4085

"(c) A person who intentionally destroys, conceals, or tampers with a record that is required to be preserved, transferred, or surrendered under Subsection (b)(4) commits an offense punishable under Section 37.10(c)(2), Penal Code."

Section 37.10 (c)(20 Penal Code states:

"An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the governmental record was a public school record, report, or assessment instrument required under Chapter 39, Education Code, or was a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States, unless the actor's intent is to defraud or harm another, in which event the offense is a felony of the second degree."

CSSB 422 creates a felony offense, but the chair failed to request the criminal justice impact statement as required by Rule 4, Section 34.

For the foregoing reasons, the point of order should be sustained.

CSSB 422 - POINT OF ORDER

Representative Dunnam raised a point of order against further consideration of CSSB 422 under Rule 4, Section 32(c) of the House Rules on the grounds that the bill analysis contains multiple inaccuracies.

The speaker overruled the point of order with respect to violations 1, 3, 5, 6, and 7, and had read the following statement:

Mr. Dunnam raised several points of order as to the sufficiency and accuracy of the bill analysis. The chair has reviewed the bill analysis in detail and states the following:

With respect to violations 1, 3, 5, 6, and 7, the chair believes that the analysis is sufficient under the rules and that it fulfills the purpose of Rule 4, Section 32(c) in that it is a proper analysis.

The point of order is respectfully overruled with respect to violations 1, 3, 5, 6, and 7. (The chair ruled on the remaining violations later today.)

MEMORANDUM BY REPRESENTATIVE DUNNAM

VIOLATION 1

The bill analysis violates Rule 4, Section 32(c)(3) by inaccurately describing a rulemaking authority provision in the bill. The bill analysis states, "rulemaking authority previously granted to the Commissioner of Education is transferred to the Texas Commission of Licensing and Regulation in SECTION 2.08, SECTION 2.10, SECTION 2.13, SECTION 2.16, SECTION 2.17, SECTION 2.18." This statement omits SECTION 2.06 in which the rulemaking authority previously granted to the Commissioner of Education is transferred to the Texas Commission of Licensing and Regulation. Under current law the Commissioner of Education is granted necessary rulemaking authority to administer Chapter 1001, Education Code. Under CSSB 422 the Texas Commission of Licensing and Regulation is given this rulemaking authority.

4086 79th LEGISLATURE — REGULAR SESSION

VIOLATION 2

The bill analysis violates Rule 4, Section 32(c)(3) in another place where it states, "rulemaking authority is expressly granted to the Commissioner of Education in...SECTION 1.30." This is inaccurate. SECTION 1.30 directs the commissioner to take certain actions if a school district does not satisfy the accreditation criteria under Section 39.071, the academic performance standard under Section 39.072, or any financial accountability standard as determined by commissioner rule. This does not in any way grant rulemaking authority to the commissioner. The authority to adopt rules relating to financial accountability standards that the bill refers to is expressly granted in Section 39.204, Education Code.

VIOLATION 3

The "analysis" section of the bill analysis states, "a child attending a qualifying school is entitled to receive an annual scholarship" (page 2, 2nd paragraph). This is explicitly untrue. The quantifier "a" must logically be interpreted to mean "any." However, only some children attending a qualifying school—not any child attending a qualifying school—are entitled to receive an annual scholarship. Only children that are at risk of dropping out, are a victim or sibling of a victim of assault, have limited English proficiency, are receiving special education services or are from a family with income no more than twice the reduced price lunch income limit are entitled. Additionally, other children who do not attend a qualifying school (drop-outs and first time students) are entitled to receive a scholarship.

VIOLATION 4

The bill analysis fails to satisfy Rule 4, Section 32(c)(4). "Each committee report on a bill...must include...a detailed analysis...specifically including...a statement of substantial differences between a complete committee substitute and the original bill." See Rule 4, Section 32(c) of the House Rules (79th Legislature)

Two sections of statute proposed by the senate engrossed version of the bill are removed in the committee substitute. The "comparison of original to substitute" section of the bill analysis makes no mention of the following substantial differences:

(1) Proposed Section 7.062, Education Code, would have required the commissioner to develop and implement a policy to encourage the use of negotiated rulemaking and alternative dispute resolution (page 6, line 27 through page 7, line 20 of engrossed version).

(2) Proposed Section 7.063 would have required the commissioner, before adopting a new rule, to evaluate whether it would impose additional paperwork requirements on teachers and attempt to minimize that (page 7, line 21 through line 25 of engrossed version).

VIOLATION 5

The "background and purpose" section of the bill analysis explicitly violates the House Rules. The "background and purpose" section contains absolutely no information on what the bill proposes to do. This violates Rule 4, Section 32(c)(1). "Each committee report on a bill...must include...a detailed

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4087

VIOLATION 6

The "analysis" section of the bill analysis (page 1, 2nd paragraph) contains a substantial omission that creates an affirmative harm and misrepresents the content of the bill. The analysis does not mention that the informal review by the Commissioner of Accountability and School Finance is final and not subject to appeal. In fact, the section of the bill takes away all avenues of appeal parties currently have under other law (page 5, lines 15-16), including court cases and administrative hearings. In other places where the bill states that a commissioner's determination is final, the bill analysis notes this (e.g. page 2, 7th paragraph). This omission is deceptive.

VIOLATION 7

The "analysis" section of the bill analysis makes no mention of the requirement to designate private non-profits as schools of choice resource centers or the requirement for this private organization to determine whether or not a child is eligible for a state program. This should be included in the section of the analysis that discusses voucher programs (page 2, 2nd paragraph). These centers are an integral part of the voucher program, yet they are not mentioned anywhere in the bill analysis. This omission is deceptive.

For the foregoing reasons, the point of order should be sustained.

Amendment No. 13

Representative Hegar offered the following amendment to CSSBi422:

Amend CSSB 422 by adding the following appropriately numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the bill appropriately:

SECTIONi____.iiSection 8.051(a), Education Code, is amended to read as follows:

(a)iiExcept as provided by Subchapter E, eachi[Each] regional education service center shall use funds distributed to the center under Section 8.121 to develop, maintain, and deliver services identified under this section to improve student and school district performance.

SECTIONi____.iiSection 8.103, Education Code, is amended to read as follows:

Sec.i8.103.iiANNUAL EVALUATION.iiExcept as provided by Subchapter E, the [The] commissioner shall conduct an annual evaluation of each executive director and regional education service center. Each evaluation must include:

(1)iian audit of the center's finances;

(2)iia review of the center's performance on the indicators adopted under Section 8.101;

(3)iia review of client satisfaction with services provided under Subchapter B; and

4088 79th LEGISLATURE — REGULAR SESSION

(4)iia review of any other factor the commissioner determines to be appropriate.

SECTIONi____.iiSection 8.121(c), Education Code, is amended to read as follows:

(c)iiEach regional education service center shall use money distributed to it under this section:

(1)iifor the provision of core services required under Section 8.051;

(2)ii[or] for payment of necessary administrative and operational expenses of the center related to the provision of core [those] services required under Section 8.051; or

(3)iias provided by Section 8.151, if the center is approved to operate under Subchapter E.

SECTIONi____.iiChapter 8, Education Code, is amended by adding Subchapter E to read as follows:

SUBCHAPTER E. VOLUNTARY PILOT PROGRAM ESTABLISHING ALTERNATIVE

METHOD OF PROVIDING SERVICES

Sec.i8.151.iiDIRECT FUNDING TO DISTRICTS PERMITTED ON APPROVAL; EVALUATION. (a) A regional education service center approved by the commissioner to operate under this subchapter may distribute funds received under Subchapter D directly to school districts in the region served by the center for the purpose of providing the school districts the freedom to purchase curriculum materials, professional development services, and instructional technology from the center or any other service provider.

(b)iiThe commissioner by rule shall establish:

(1)iia procedure for regional education service centers to apply for approval to operate under this subchapter;

(2)iicriteria for approving or denying an application under this subchapter; and

(3)iicriteria for evaluating each executive director and regional education service center approved to operate under this subchapter.

Sec.i8.152.iiANNUAL AUDIT. (a) At least once each year, a regional education service center operating under this subchapter shall have a fiscal audit performed by a certified public accountant.

(b)iiA regional education service center shall submit a copy of the annual audit to the commissioner for review. The commissioner may:

(1)iiexamine any working papers from the annual audit; and

(2)iiconduct a separate audit if, after reviewing the independent audit, the commissioner considers a separate audit necessary.

(c)iiA regional education service center operating under this subchapter is not subject to the management processes, procedures, and guidelines established by and for regional education service centers that do not operate under this subchapter.

(d)iiA regional education service center operating under this subchapter may use management processes, procedures, and guidelines that are reasonable and necessary to sustain the center financially.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4089

(e)iiA regional education service center operating under this subchapter is accountable to the school districts in the region served by the center and the commissioner.

Sec.i8.153.iiEXPIRATION. This subchapter expires September 1, 2009.

SECTIONi____.iiEffective September 1, 2009, Section 8.051(a), Education Code, is amended to read as follows:

(a)iiEach regional education service center shall use funds distributed to the center under Section 8.121 to develop, maintain, and deliver services identified under this section to improve student and school district performance.

SECTIONi____.iiEffective September 1, 2009, Section 8.103, Education Code, is amended to read as follows:

Sec.i8.103.iiANNUAL EVALUATION.ii The commissioner shall conduct an annual evaluation of each executive director and regional education service center. Each evaluation must include:

(1)iian audit of the center's finances;

(2)iia review of the center's performance on the indicators adopted under Section 8.101;

(3)iia review of client satisfaction with services provided under Subchapter B; and

(4)iia review of any other factor the commissioner determines to be appropriate.

SECTIONi____.iiEffective September 1, 2009, Section 8.121(c), Education Code, is amended to read as follows:

(c)iiEach regional education service center shall use money distributed to it under this section:

(1)iifor the provision of core services required under Section 8.051; or

(2)iifor payment of necessary administrative and operational expenses of the center related to the provision of core [those] services required under Section 8.051.

SECTIONi____.iiNot later than January 1, 2006, the commissioner of education shall adopt rules to authorize regional education service centers to operate under Subchapter E, Chapter 8, Education Code, as added by this Act.

SECTIONi____.ii(a) The commissioner of education shall conduct a study to review the performance of regional education service centers operating under Subchapter E, Chapter 8, Education Code, as added by this Act.

(b)iiNot later than January 1, 2009, the commissioner of education shall report the results of the study to the governor, lieutenant governor, speaker of the house of representatives, and the chairs of the standing committees of each house of the legislature with primary jurisdiction over public education. In the report, the commissioner shall:

(1)iistate the commissioner's findings and recommendations; and

(2)iiidentify any opportunities for legislative or administrative actions.

SECTIONi____.iiSections 8.051(a), 8.103, 8.121(c), Education Code, as amended by this Act, and Subchapter E, Chapter 8, Education Code, as added by this Act, apply beginning with the 2006-2007 school year.

4090 79th LEGISLATURE — REGULAR SESSION

Amendment No. 14

Representative Hegar offered the following amendment to Amendment No.i13:

Amend Amendment No. 13 by Hegar to CSSB 422 as follows:

(1) Strike page 1, lines 11-23, and substitute the following:

SECTION __. Section 8.103, Education Code, is amended to read as follows:

Sec. 8.103. ANNUAL EVALUATION. (a) Except as provided by Subchapter E, the [The] commissioner shall conduct an annual evaluation of each executive director and regional education service center. Each evaluation must include:

(1) an audit of the center's finances;

(2) a review of the center's performance on the indicators adopted under Section 8.101;

(3) a review of client satisfaction with services provided under Subchapter B;

(4) a survey of the center's board of directors concerning the performance of the center's executive director;

(5) a review of:

(A) the number of programs offered by the center to improve student performance on assessment instruments administered under Section 39.023; and

(B) the attendance rate at each program described by Paragraph (A) during each year of the preceding two years;

(6) a review of the center's performance on four goals established by the center for improving the center's performance; and

(7) [(4)] a review of any other factor the commissioner determines to be appropriate.

(b) The agency shall post the results of an evaluation conducted under this section on the agency's Internet website.

SECTION __. Subchapter C, Chapter 8, Education Code, is amended by adding Section 8.1031 to read as follows:

Sec. 8.1031. RATING SYSTEM. (a) The commissioner shall establish a system for rating regional education service centers on the basis of the results of evaluations conducted under Section 8.103.

(b) The rating system must include a minimum level of performance that a regional education service center is expected to achieve on each area evaluated under Section 8.103 and on the overall evaluation. A center that does not meet the minimum level of overall performance is considered to be low-performing.

SECTION __. Section 8.104, Education Code, is amended to read as follows:

Sec. 8.104. SANCTIONS. (a) The commissioner shall develop a system of corrective actions to require a regional education service center that the commissioner determines to be low-performing [deficient in an accountability measure] under Section 8.1031 [8.103].

(b) The actions must include, in increasing order of severity:

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4091

(1) conducting an on-site investigation of the center;

(2) requiring the center to send notice [of each deficiency] to each school district and campus in the center's region or served by the center the previous year concerning any area of performance, including overall performance, that is below the minimum level of performance established for that area under Section 8.1031; and

(3) requiring the center to prepare for the commissioner's approval a plan to address each area of performance that is below the minimum level of performance established for that area under Section 8.1031 [deficiency;

[(4) appointing a master to oversee the operations of the center;

[(5) replacing the executive director or board of directors; and

[(6) in the case of deficient performance in two consecutive years, closing the center].

(c) In addition to the actions required under Subsection (b), the commissioner shall take the following actions:

(1) for a regional education service center that has been low-performing for one school year, place the center on probation;

(2) for a regional education service center that has been low-performing for two consecutive school years, continue the center's probation and:

(A) withhold any state money to which the center is otherwise entitled; and

(B) distribute the money withheld to school districts in the region that the center serves; and

(3) for a regional education service center that has been low-performing for three consecutive school years:

(A) both:

(i) appoint a master to oversee the operations of the center; and

(ii) replace the executive director or board of directors; or

(B) order the closure of the center.

(2) Strike page 3, line 29, through page 4, line 7, and substitute the following:

Sec. 8.103. ANNUAL EVALUATION. (a) The commissioner shall conduct an annual evaluation of each executive director and regional education service center. Each evaluation must include:

(1) an audit of the center's finances;

(2) a review of the center's performance on the indicators adopted under Section 8.101;

(3) a review of client satisfaction with services provided under Subchapter B;

(4) a survey of the center's board of directors concerning the performance of the center's executive director;

(5) a review of:

(A) the number of programs offered by the center to improve student performance on assessment instruments administered under Section 39.023; and

4092 79th LEGISLATURE — REGULAR SESSION

(B) the attendance rate at each program described by Paragraph (A) during each year of the preceding two years;

(6) a review of the center's performance on four goals established by the center for improving the center's performance; and

(7) [(4)] a review of any other factor the commissioner determines to be appropriate.

(b) The agency shall post the results of an evaluation conducted under this section on the agency's Internet website.

(3) On page 4, between lines 16 and 17, insert the following:

SECTION __. (a) As soon as practicable after the effective date of this Act, the commissioner of education shall establish a rating system for regional education service centers as required by Section 8.1031, Education Code, as added by this Act.

(b) The Texas Education Agency shall begin rating regional education service centers as required by Section 8.1031, Education Code, as added by this Act, beginning with the 2006-2007 school year.

(c) The commissioner of education may not take an action under Section 8.104, Education Code, as amended by this Act, based on the performance of a regional education service center for the 2005-2006 school year or an earlier school year.

Amendment No. 14 was adopted.

Amendment No. 13, as amended, was adopted.

Amendment No. 15

Representative Olivo offered the following amendment to CSSBi422:

Amend CSSB 422 (House committee printing) in SECTION 1.03 of the bill by striking added Section 7.010(b)(2), Education Code (page 2, lines 19 and 20), and substituting the following:

(2)iispecific examples of successful best practices, including information relating to:

(A)iithe cultural and language needs of Hispanic and African-American students;

(B)iithe creation of programs that facilitate parental involvement in public schools; and

(C)iimethods for eliminating differences in facilities and curriculum among public schools; and

Representative Eissler moved to table Amendment No. 15.

A record vote was requested.

The motion to table prevailed by (Record 772): 82 Yeas, 58 Nays, 1 Present, not voting.

Yeas — Allen, R.; Baxter; Berman; Blake; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Chisum; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Eissler; Elkins; Flynn; Gattis; Goodman; Griggs; Grusendorf; Haggerty; Hamilton; Hamric; Hardcastle;

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4093

Nays — Allen, A.; Alonzo; Anchia; Burnam; Casteel; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Edwards; Eiland; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Geren; Gonzales; Gonzalez Toureilles; Guillen; Herrero; Hochberg; Homer; Hopson; Jones, J.; King, T.; Laney; Leibowitz; Luna; Martinez; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, P.; Naishtat; Noriega, M.; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Rose; Solis; Strama; Thompson; Turner; Uresti; Veasey; Villarreal; Vo.

Present, not voting — Mr. Speaker(C).

Absent, Excused — Bailey; Bonnen; Driver; Dutton; Hodge.

Absent — Anderson; Giddings; Goolsby.

STATEMENT OF VOTE

When Record No. 772 was taken, I was in the house but away from my desk. I would have voted yes.

Anderson

Amendment No. 16

Representative Hochberg offered the following amendment to CSSBi422:

Amend CSSB 422 by striking Section 1.06 (page 5, lines 4 through 21).

Amendment No. 16 was withdrawn.

Amendment No. 17

Representative Coleman offered the following amendment to CSSBi422:

Amend CSSB 422 as follows:

(1) In ARTICLE 1 of the bill (committee printing, page 12, lines 9 through 25), strike SECTION 1.13 and renumber accordingly:

Amendment No. 17 was withdrawn.

Amendment No. 18

Representative Olivo offered the following amendment to CSSBi422:

Amend CSSB 422 in Section 1.15 of the bill, in added Section 29.0162(b), Education Code (house committee report, page 13, lines 17 and 18), between "must" and "include", by inserting "be provided in English and Spanish and must".

Representative Eissler moved to table Amendment No. 18.

A record vote was requested.

4094 79th LEGISLATURE — REGULAR SESSION

The motion to table prevailed by (Record 773): 81 Yeas, 59 Nays, 1 Present, not voting.

Yeas — Allen, R.; Anderson; Baxter; Berman; Blake; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Chisum; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Eissler; Elkins; Flynn; Gattis; Goolsby; Grusendorf; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jackson; Jones, D.; Keel; Keffer, B.; Keffer, J.; King, P.; Kolkhorst; Kuempel; Laubenberg; Madden; McCall; Merritt; Miller; Morrison; Mowery; Nixon; Orr; Otto; Paxton; Phillips; Pitts; Reyna; Riddle; Ritter; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Straus; Swinford; Talton; Taylor; Van Arsdale; West; Wong; Woolley; Zedler.

Nays — Allen, A.; Alonzo; Anchia; Burnam; Casteel; Castro; Chavez; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Edwards; Eiland; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Griggs; Guillen; Herrero; Hochberg; Jones, J.; King, T.; Laney; Leibowitz; Luna; Martinez; Martinez Fischer; McClendon; McReynolds; Menendez; Moreno, P.; Naishtat; Noriega, M.; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Rodriguez; Rose; Solis; Strama; Thompson; Turner; Uresti; Veasey; Villarreal; Vo.

Present, not voting — Mr. Speaker(C).

Absent, Excused — Bailey; Bonnen; Driver; Dutton; Hodge.

Absent — Haggerty; Krusee; Truitt.

STATEMENT OF VOTE

I was shown voting no on Record No. 773. I intended to vote yes.

Goodman

Amendment No. 19

Representative Casteel offered the following amendment to CSSBi422:

Amend CSSB 422 (House committee printing) by striking SECTION 1.17 (page 16, line 1, through page 26, line 2) and SECTIONS 1.37 and 1.38 (page 55, line 24, through page 57, line 24), and renumbering the subsequent SECTIONS of Article 1 accordingly.

MESSAGE FROM THE SENATE

A message from the senate was received at this time (see the addendum to the daily journal, Messages from the Senate, Message No. 3).

CSSB 422 - (consideration continued)

Representative J. Davis moved to table Amendment No. 19.

A record vote was requested.

The vote of the house was taken on the motion to table Amendment No. 19 and the vote was announced yeas 72, nays 72.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4095

A verification of the vote was requested and was granted.

The roll of those voting yea and nay was again called and the verified vote resulted, as follows (Record 774): 72 Yeas, 72 Nays, 0 Present, not voting.

Yeas — Mr. Speaker(C); Allen, R.; Anderson; Baxter; Berman; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Chisum; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Delisi; Denny; Eissler; Elkins; Flynn; Gattis; Goodman; Grusendorf; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hupp; Isett; Jackson; Keffer, B.; Keffer, J.; King, P.; Kolkhorst; Krusee; Laubenberg; Madden; McCall; Miller; Morrison; Mowery; Nixon; Orr; Otto; Paxton; Phillips; Pitts; Reyna; Riddle; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Straus; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wong; Woolley; Zedler.

Nays — Allen, A.; Alonzo; Anchia; Blake; Burnam; Casteel; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Dawson; Deshotel; Dukes; Dunnam; Edwards; Eiland; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goolsby; Griggs; Guillen; Haggerty; Hamilton; Herrero; Hochberg; Homer; Hopson; Hunter; Jones, D.; Jones, J.; Keel; King, T.; Kuempel; Laney; Leibowitz; Luna; Martinez; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, P.; Naishtat; Noriega, M.; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Rose; Solis; Strama; Thompson; Turner; Uresti; Veasey; Villarreal; Vo.

Absent, Excused — Bailey; Bonnen; Driver; Dutton; Hodge.

The speaker stated that the motion to table Amendment No. 19 was lost by the above vote.

STATEMENTS OF VOTE

When Record No. 774 was taken, I was absent because of illness in the family. Had I been present I would have voted no.

Bonnen

I was shown voting yes on Record No. 774. I intended to vote no.

Hardcastle

A record vote was requested.

The vote of the house was taken on the adoption of Amendment No. 19 and the vote was announced yeas 70, nays 72.

A verification of the vote was requested and was granted.

The roll of those voting yea and nay was again called and the verified vote resulted, as follows (Record 775): 72 Yeas, 72 Nays, 0 Present, not voting.

Yeas — Allen, A.; Alonzo; Anchia; Blake; Burnam; Casteel; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Dawson; Deshotel; Dukes; Dunnam; Edwards; Eiland; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goolsby; Griggs; Guillen; Haggerty;

4096 79th LEGISLATURE — REGULAR SESSION

Nays — Mr. Speaker(C); Allen, R.; Anderson; Baxter; Berman; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Chisum; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Delisi; Denny; Eissler; Elkins; Flynn; Gattis; Goodman; Grusendorf; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hupp; Isett; Jackson; Keffer, B.; Keffer, J.; King, P.; Kolkhorst; Krusee; Laubenberg; Madden; McCall; Miller; Morrison; Mowery; Nixon; Orr; Otto; Paxton; Phillips; Pitts; Reyna; Riddle; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Straus; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wong; Woolley; Zedler.

Absent, Excused — Bailey; Bonnen; Driver; Dutton; Hodge.

The speaker stated that Amendment No. 19 failed of adoption by the above vote.

STATEMENT OF VOTE

When Record No. 775 was taken, I was absent because of illness in the family. Had I been present I would have voted yes.

Bonnen

Amendment No. 20

Representative Geren offered the following amendment to CSSBi422:

Amend CSSB 422 in SECTION 1.17 of the bill, in added Subchapter J, Chapter 29, Education Code (house committee report), as follows:

(1) On page 16, line 26, strike "750,000" and substitute "one million".

(2) On page 17, line 2, between "is" and "the", insert "not".

(3) On page 17, line 5, strike "90" and substitute "85".

Amendment No. 21

Representative Geren offered the following amendment to Amendment No.i20:

Amend the Geren amendment to CSSB 422 as follows:

(1) On page 1 of the amendment, line 5, strike "one million" and substitute "1.4 million or more that is adjacent to another county with a population of 1.4 million or more".

(2) On page 1 of the amendment, strike lines 6-8 and substitute the following:

(2) On page 17, strike lines 2-4 and substitute the following:

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4097

(1) the district is the second largest district in the county in which at least 48 percent of the students are educationally disadvantaged according to the data provided through the Public Education Information Management System for the fall semester of the 2004-2005 school year.

(3) On page 17, strike lines 5-6 and renumber accordingly.

Amendment No. 21 was adopted.

Representative B. Keffer moved to table Amendment No. 20.

A record vote was requested.

The motion to table was lost by (Record 776): 67 Yeas, 76 Nays, 1 Present, not voting.

Yeas — Allen, R.; Anderson; Baxter; Berman; Bohac; Branch; Brown, B.; Callegari; Campbell; Chisum; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Delisi; Denny; Eissler; Elkins; Flynn; Gattis; Goodman; Grusendorf; Hamric; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hupp; Isett; Jackson; Keffer, B.; King, P.; Krusee; Laubenberg; Madden; McCall; Miller; Morrison; Mowery; Nixon; Orr; Otto; Paxton; Phillips; Pitts; Reyna; Riddle; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Straus; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wong; Woolley; Zedler.

Nays — Allen, A.; Alonzo; Anchia; Blake; Brown, F.; Burnam; Casteel; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Dawson; Deshotel; Dukes; Dunnam; Edwards; Eiland; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goolsby; Griggs; Guillen; Haggerty; Hamilton; Hardcastle; Herrero; Hochberg; Homer; Hopson; Hunter; Jones, D.; Jones, J.; Keel; Keffer, J.; King, T.; Kolkhorst; Kuempel; Laney; Leibowitz; Luna; Martinez; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, P.; Naishtat; Noriega, M.; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Rose; Solis; Strama; Thompson; Turner; Uresti; Veasey; Villarreal; Vo.

Present, not voting — Mr. Speaker(C).

Absent, Excused — Bailey; Bonnen; Driver; Dutton; Hodge.

Amendment No. 20 was adopted.

Amendment No. 22

Representative Geren offered the following amendment to CSSBi422:

Amend CSSB 422 in SECTION 1.17 of the bill, in added Subchapter J, Chapter 29, Education Code (house committee report), as follows:

(1)iiOn page 16, strike lines 9-14.

(2)iiOn page 16, line 18, after "Subchapter G;", insert "or".

(3)iiOn page 16, line 21, strike "; or" and substitute ".".

(4)iiOn page 16, strike lines 22-23.

(5)iiStrike page 18, line 18, through page 23, line 15.

(6)iiOn page 23, line 16, strike "Sec. 29.360" and substitute "Sec. 29.355".

(7)iiOn page 24, line 2, strike "Sec. 29.361" and substitute "Sec. 29.356".

4098 79th LEGISLATURE — REGULAR SESSION

(8)iiOn page 24, line 8, strike "Sec. 29.362" and substitute "Sec. 29.357".

(9)iiOn page 24, line 13, strike "or qualifying school".

(10)iiStrike page 24, line 15, through page 25, line 1.

(11)iiOn page 25, line 2, strike "Sec. 29.364" and substitute "Sec. 29.358".

(12)iiOn page 25, line 15, strike "and private".

(Chisum in the chair)

Representative Grusendorf moved to table Amendment No. 22.

A record vote was requested.

The motion to table was lost by (Record 777): 70 Yeas, 72 Nays, 1 Present, not voting.

Yeas — Allen, R.; Anderson; Baxter; Berman; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Chisum(C); Cook, B.; Corte; Crabb; Crownover; Davis, J.; Delisi; Denny; Eissler; Elkins; Flynn; Gattis; Goodman; Grusendorf; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hupp; Isett; Jackson; Keffer, B.; Keffer, J.; King, P.; Kolkhorst; Krusee; Laubenberg; Madden; McCall; Miller; Morrison; Mowery; Nixon; Orr; Otto; Paxton; Phillips; Pitts; Reyna; Riddle; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Straus; Swinford; Talton; Taylor; Van Arsdale; West; Wong; Woolley; Zedler.

Nays — Allen, A.; Alonzo; Anchia; Blake; Burnam; Casteel; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Dawson; Deshotel; Dukes; Dunnam; Edwards; Eiland; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goolsby; Griggs; Guillen; Haggerty; Hamilton; Herrero; Hochberg; Homer; Hopson; Hunter; Jones, D.; Jones, J.; Keel; King, T.; Kuempel; Laney; Leibowitz; Luna; Martinez; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, P.; Naishtat; Noriega, M.; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Rose; Solis; Strama; Thompson; Turner; Uresti; Veasey; Villarreal; Vo.

Present, not voting — Mr. Speaker.

Absent, Excused — Bailey; Bonnen; Driver; Dutton; Hodge.

Absent — Truitt.

STATEMENT OF VOTE

When Record No. 777 was taken, I was absent because of illness in the family. Had I been present I would have voted no.

Bonnen

(Speaker in the chair)

A record vote was requested.

Amendment No. 22 was adopted by (Record 778): 74 Yeas, 70 Nays, 0 Present, not voting.

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4099

Yeas — Allen, A.; Allen, R.; Alonzo; Anchia; Blake; Burnam; Casteel; Castro; Chavez; Coleman; Cook, R.; Davis, Y.; Dawson; Deshotel; Dukes; Dunnam; Edwards; Eiland; Escobar; Farabee; Farrar; Flores; Frost; Gallego; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Guillen; Haggerty; Hamilton; Herrero; Hochberg; Homer; Hopson; Hunter; Jones, D.; Jones, J.; Keel; King, T.; Kuempel; Laney; Leibowitz; Luna; Martinez; Martinez Fischer; McClendon; McReynolds; Menendez; Merritt; Moreno, P.; Naishtat; Noriega, M.; Oliveira; Olivo; Peña; Pickett; Puente; Quintanilla; Raymond; Ritter; Rodriguez; Rose; Solis; Strama; Thompson; Turner; Uresti; Veasey; Villarreal; Vo.

Nays — Mr. Speaker(C); Anderson; Baxter; Berman; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Chisum; Cook, B.; Corte; Crabb; Crownover; Davis, J.; Delisi; Denny; Eissler; Elkins; Flynn; Gattis; Grusendorf; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Hope; Howard; Hughes; Hupp; Isett; Jackson; Keffer, B.; Keffer, J.; King, P.; Kolkhorst; Krusee; Laubenberg; Madden; McCall; Miller; Morrison; Mowery; Nixon; Orr; Otto; Paxton; Phillips; Pitts; Reyna; Riddle; Seaman; Smith, T.; Smith, W.; Smithee; Solomons; Straus; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Wong; Woolley; Zedler.

Absent, Excused — Bailey; Bonnen; Driver; Dutton; Hodge.

STATEMENTS OF VOTE

I was shown voting yes on Record No. 778. I intended to vote no.

R. Allen

When Record No. 778 was taken, I was absent because of illness in the family. Had I been present I would have voted yes.

Bonnen

CSSB 422 - POINT OF ORDER

Representative Thompson raised a point of order against further consideration of CSSB 422 under Rule 4, Section 6 and Rule 6, Section 16 of the House Rules on the grounds that the duties of the chair were not fulfilled and the calendar was not printed and distributed correctly.

The speaker overruled the point of order.

CSSB 422 - POINT OF ORDER DISPOSITION

Representative Dunnam had raised a point of order against further consideration of CSSB 422 under Rule 4, Section 32(c) of the House Rules on the grounds that the bill analysis contains multiple inaccuracies.

The speaker sustained the point of order, and had read the following statement:

Representative Dunnam raised seven points of order on the sufficiency of the bill analysis to CSSB 422. Five of those violations have been previously overruled.

4100 79th LEGISLATURE — REGULAR SESSION

Violation 4 notes the failure of the bill analysis to satisfy the requirements of Rule 4, Section 32(c)(4) to discuss two proposed sections. The first, a standard Sunset across-the-board provisions, language relating to encouraging the use of negotiated rulemaking and alternative dispute resolution provisions, and the second, a provision that require the commissioner to evaluate, before adopting a rule, whether it would impose additional paperwork requirements on teachers and attempt to minimize that paperwork.

Both of these provisions appear in the senate engrossed version and do not appear in house committee of the bill. There is no discussion of the absence of these two provisions in the portion of the bill analysis containing a comparison of the original to the substitute.

In making a determination of whether a bill analysis complies with the provisions of Rule 4, Sec. 32(c), the presiding officer must examine each unique bill and each unique bill analysis. In this case, the chair has reviewed the house and senate version of the bills and the bill analysis. Failure to describe, in this case, the deletion of the rulemaking and alternative dispute resolution provision and the reduction of paperwork provision failed to set out a statement of substantial differences between the complete committee substitute and the original bill.

Accordingly, the point of order raised by Representative Dunnam is sustained.

The ruling precluded further consideration of CSSB 422.

CSSB 422 - REASONS FOR VOTE

My support for the TEA Sunset bill was contingent on the Chisum amendment being adopted, which would guarantee that no funds from rural school districts would be used to cover costs of a limited pilot voucher program. The Chisum amendment would have also forbidden the limited pilot voucher program from being expaned into rural areas without an additional Act of the legislature. Because the TEA Sunset bill was killed on the point of order prior to the Chisum amendment being added, I want the house record to clearly state my support of the pilot voucher program was solely contingent on this rural protection being a requirement of the pilot program.

Anderson, F. Brown, Campbell, Chisum, B. Cook, Flynn, Hardcastle, Hilderbran, J. Keffer, Kolkhorst, Miller, Orr, Otto, Pitts, Swinford, Smithee

I supported CSSB 422 because it was the Texas Education Agency (TEA) sunset bill. Without this legislation, the TEA would be abolished this coming year. I was not willing to kill the Texas Education Agency because of an amendment added in the Public Education committee. In committee, an amendment was added to this legislation that would have allowed a pilot voucher program for urban school districts. Before the point of order on CSSB 422 was sustained, I authored several amendments which would have limited the pilot voucher program to only the five largest school districts in Texas with no ability for expansion to other areas of the state without prior legislative approval. Furthermore, my amendments would have limited funding of the pilot voucher

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4101

Miller

I voted for the TEA Sunset bill contingent on the Chisum amendment being adopted which would guarantee that no funds from rural school districts would be used to cover costs of a limited pilot voucher program. Because TEA Sunset bill was killed on the point of order prior to the Chisum amendment being added. I want the House record to clearly state my support of the pilot voucher program was solely contingent on this rural protection being a requirement of the pilot program.

West

HB 540 - HOUSE CONCURS IN SENATE AMENDMENTS
TEXT OF SENATE AMENDMENTS

Representative Bohac called up with senate amendments for consideration at this time,

HB 540, A bill to be entitled An Act relating to the designation of the portion of U.S. Highway 290 inside Harris County as the Ronald Reagan Memorial Highway.

Representative Bohac moved to concur in the senate amendments to HBi540.

The motion to concur in senate amendments prevailed. (In accordance with House Rule 5, Section 51(b), every member present must have favored passage of the measure, but any member may register their position with the journal clerk. Members registering votes are as follows: A. Allen, Herrero, Leibowitz, McClendon, Solis, and Veasey, recorded voting no.)

Senate Committee Substitute

HB 540, A bill to be entitled An Act relating to the designation of a portion of U.S. Highway 290 inside Harris County as the Ronald Reagan Memorial Highway.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubchapter B, Chapter 225, Transportation Code, is amended by adding Section 225.059 to read as follows:

Sec.i225.059.iiRONALD REAGAN MEMORIAL HIGHWAY. (a) The part of U.S. Highway 290 in Harris County between the Harris County boundary with Waller County and Beltway 8 is designated as the Ronald Reagan Memorial Highway.

(b)iiThe department shall design and construct memorial markers indicating the highway number, the designation as the Ronald Reagan Memorial Highway, and any other appropriate information.

4102 79th LEGISLATURE — REGULAR SESSION

(c)iiThe department shall erect a marker at each end of the highway and at appropriate intermediate sites along the highway.

(d)iiThe department is not required to design, construct, or erect a marker under this section unless the department receives a grant or donation to cover the cost of the design, construction, and erection.

(e)iiFunds collected under Section 225.021 for the purpose of implementing this section shall be deposited to the credit of the state highway fund.

SECTIONi2.iiThis Act takes effect September 1, 2005.

HB 874 - HOUSE CONCURS IN SENATE AMENDMENTS
TEXT OF SENATE AMENDMENTS

Representative Kuempel called up with senate amendments for consideration at this time,

HB 874, A bill to be entitled An Act relating to designating a portion of State Highway 123 as the Senator John Traeger Memorial Highway.

Representative Kuempel moved to concur in the senate amendments to HBi874.

A record vote was requested.

The motion to concur in senate amendments prevailed by (Record 779): 132 Yeas, 0 Nays, 1 Present, not voting.

Yeas — Allen, A.; Allen, R.; Alonzo; Anchia; Anderson; Baxter; Berman; Blake; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Castro; Chavez; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Dunnam; Edwards; Eiland; Eissler; Elkins; Escobar; Farabee; Farrar; Flynn; Frost; Gallego; Gattis; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Herrero; Hilderbran; Hill; Hochberg; Homer; Hope; Hopson; Howard; Hunter; Hupp; Isett; Jackson; Jones, D.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Leibowitz; Luna; Madden; Martinez; Martinez Fischer; McCall; McReynolds; Menendez; Merritt; Miller; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega, M.; Oliveira; Olivo; Orr; Otto; Paxton; Peña; Phillips; Pickett; Quintanilla; Raymond; Reyna; Riddle; Ritter; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Strama; Straus; Swinford; Talton; Taylor; Thompson; Truitt; Turner; Uresti; Van Arsdale; Veasey; Villarreal; Vo; West; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker(C).

Absent, Excused — Bailey; Bonnen; Driver; Dutton; Hodge.

Absent — Burnam; Deshotel; Dukes; Flores; Hughes; Jones, J.; McClendon; Pitts; Puente; Rodriguez; Rose.

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STATEMENTS OF VOTE

When Record No. 779 was taken, I was in the house but away from my desk. I would have voted yes.

Deshotel

When Record No. 779 was taken, I was in the house but away from my desk. I would have voted yes.

Rose

Senate Committee Substitute

HB 874, A bill to be entitled An Act relating to designating a portion of State Highway 123 as the Senator John Traeger Memorial Highway.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSubchapter B, Chapter 225, Transportation Code, is amended by adding Section 225.0395 to read as follows:

Sec.i225.0395.iiSENATOR JOHN TRAEGER MEMORIAL HIGHWAY. (a) State Highway 123 between Interstate Highway 10 and United States Highway 90A is designated as the Senator John Traeger Memorial Highway.

(b)iiThe department shall design and construct memorial markers indicating the highway number, the designation as the Senator John Traeger Memorial Highway, and any other appropriate information.

(c)iiExcept as provided by Subsection (d), the department shall erect a marker at each end of the highway and at appropriate intermediate sites along the highway.

(d)iiThe department is not required to design, construct, or erect a marker required by this section unless a grant or donation of private funds is made to the department to cover the cost of the design, construction, and erection of the marker.

(e)iiMoney collected under Section 225.021 for the purpose of implementing this section shall be deposited to the credit of the state highway fund.

SECTIONi2.iiThis 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, 2005.

HB 1045 - HOUSE CONCURS IN SENATE AMENDMENTS
TEXT OF SENATE AMENDMENTS

Representative Goolsby called up with senate amendments for consideration at this time,

HB 1045, A bill to be entitled An Act relating to amendments to the Texas Timeshare Act.

Representative Goolsby moved to concur in the senate amendments to HBi1045.

A record vote was requested.

4104 79th LEGISLATURE — REGULAR SESSION

The motion to concur in senate amendments prevailed by (Record 780): 141 Yeas, 0 Nays, 1 Present, not voting.

Yeas — Allen, A.; Allen, R.; Alonzo; Anchia; Anderson; Baxter; Berman; Blake; Bohac; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Castro; Chavez; Chisum; Coleman; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Davis, Y.; Dawson; Delisi; Denny; Deshotel; Dukes; Dunnam; Edwards; Eiland; Eissler; Elkins; Escobar; Farabee; Farrar; Flores; Flynn; Frost; Gallego; Gattis; Geren; Giddings; Gonzales; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Herrero; Hilderbran; Hill; Hochberg; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jackson; Jones, D.; Jones, J.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Leibowitz; Luna; Madden; Martinez; Martinez Fischer; McCall; McClendon; McReynolds; Menendez; Merritt; Miller; Moreno, P.; Morrison; Mowery; Naishtat; Nixon; Noriega, M.; Oliveira; Olivo; Orr; Otto; Paxton; Peña; Phillips; Pickett; Pitts; Puente; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Smithee; Solis; Solomons; Strama; Straus; Swinford; Talton; Taylor; Thompson; Truitt; Turner; Uresti; Van Arsdale; Veasey; Villarreal; Vo; West; Wong; Woolley; Zedler.

Present, not voting — Mr. Speaker(C).

Absent, Excused — Bailey; Bonnen; Driver; Dutton; Hodge.

Absent — Burnam; Rodriguez.

Senate Committee Substitute

HB 1045, A bill to be entitled An Act relating to amendments to the Texas Timeshare Act.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONi1.iiSection 221.002, Property Code, is amended to read as follows:

Sec.i221.002.iiDEFINITIONS. As used in this chapter:

(1)ii"Accommodation" means any apartment, condominium or cooperative unit, [or] hotel or motel room, cabin, lodge, or other private or commercial structure that:

(A)iiis affixed to real property;

(B)iiis designed for occupancy or use by one or more individuals; and

(C)iiis part of [in a building or commercial structure that is situated on] a timeshare plan [property and subject to a timeshare regime].

(2)ii"Advertisement [Advertising]" means any written, oral, or electronic communication that is directed to or targeted at individuals in this state and contains a promotion, [direct or indirect solicitation or] inducement, or offer to sell a timeshare interest, including a promotion, inducement, or offer to sell:

(A)iicontained in a brochure, pamphlet, or radio or television transcript;

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(B)iicommunicated by [to purchase and includes a solicitation or inducement made by print or] electronic media or telephone; or

(C)iisolicited[,] through direct [the] mail[, or by personal contact].

(3)ii"Amenities" means all common areas and includes recreational and maintenance facilities of the timeshare plan [property].

(4)ii"Assessment" means an amount assessed against or collected from a purchaser by an association or its managing entity in a fiscal year, regardless of the frequency with which the amount is assessed or collected, to cover expenditures, charges, reserves, or liabilities related to the operation of a timeshare plan or timeshare properties managed by the same managing entity.

(5)ii"Association" means a council or association composed of all persons who have purchased a timeshare interest.

(6)ii"Commission" means the Texas Real Estate Commission.

(7)ii"Component site" means a specific geographic location where accommodations that are part of a multisite timeshare plan are located. Separate phases of a single timeshare property in a specific geographic location and under common management are a single component site.

(8)i[(5)ii"Council of purchasers" means a council or association composed of all persons who have purchased a timeshare estate.

[(6)]ii"Developer" means:

(A)iiany person, excluding a sales agent, who creates a timeshare plan or is in the business of selling timeshare interests or employs a sales agent to sell timeshare interests; or

(B)iiany person who succeeds in the developer's interest by sale, lease, assignment, mortgage, or other transfer if the person:

(i)iioffers at least 12 timeshare interests in a particular timeshare plan; and

(ii)iiis in the business of selling timeshare interests or employs a sales agent to sell timeshare interests [regime].

(9)i[(7)]ii"Dispose" or "disposition" means a voluntary transfer of any legal or equitable timeshare interest but does not include the transfer or release of a real estate lien or of a security interest.

(10)i[(8)]ii"Escrow agent" means a [an independent] bonded escrow company, a financial [or an] institution whose accounts are insured by a governmental agency or instrumentality, or an attorney or title insurance agent licensed in this state [and] who is responsible for the receipt and disbursement of funds in accordance with this chapter.

(11)i[(9)]ii"Exchange company" means any person[, including a developer,] who owns or operates an exchange program.

(12)i[(10)]ii"Exchange disclosure statement" means a written statement that includes the information required by Section 221.033 [201.033].

(13)i[(11)]ii"Exchange program" means any method, arrangement, or procedure for the voluntary exchange of [program under which the owner of a] timeshare interests among purchasers or owners [interest may exchange a timeshare period for another timeshare period in the same or a different timeshare

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(14)ii"Incidental use right" means the right to use accommodations and amenities at one or more timeshare properties that is not guaranteed and is administered by the managing entity of the timeshare properties that makes vacant accommodations at the timeshare properties available to owners of timeshare interests in the timeshare properties.

(15)i[(12)]ii"Managing entity" means the person responsible for operating and maintaining a timeshare property.

(16)ii"Multisite timeshare plan" means a plan in which a timeshare purchaser has:

(A)iia specific timeshare interest, which is the right to use and occupy accommodations at a specific timeshare property and the right to use and occupy accommodations at one or more other component sites created by or acquired solely through the reservation system of the timeshare plan; or

(B)iia nonspecific timeshare interest, which is the right to use and occupy accommodations at more than one component site created by or acquired solely through the reservation system of the timeshare plan but which does not include a right to use and occupy a particular accommodation.

(17)i[(13)ii"Master deed" or "master lease" or "declaration" means the deed, lease, or declaration establishing real property as a timeshare regime.

[(14)]ii"Offering" or "offer" means any advertisement, inducement, or solicitation and includes any attempt to encourage a person to purchase a timeshare interest other than as a security for an obligation.

(18)i[(15)]ii"Project instrument" means a timeshare instrument or one or more recordable documents, by whatever name denominated, applying to the whole of a timeshare project and containing restrictions or covenants regulating the use, occupancy, or disposition of units in a project, including a [master deed, master lease,] declaration for a condominium, association articles of incorporation, association [or] bylaws, and rules for a condominium in which a timeshare plan is created.

(19)i[(16)]ii"Promotion" means any program, [or] activity, contest, or gift, prize, or other item of value used to induce any person to attend a timeshare sales presentation.

(20)i[(17)ii"Promotional disclosure statement" means a written statement that includes the information required by Section 201.031.

[(18)]ii"Purchaser" means any person, other than a developer [seller], who by means of a voluntary transfer acquires a legal or equitable interest in a timeshare interest other than as a security for an obligation.

(21)ii"Reservation system" means the method, arrangement, or procedure by which a purchaser, in order to reserve the use and occupancy of an accommodation of a multisite timeshare plan for one or more timeshare periods, is required to compete with other purchasers in the same multisite timeshare plan, regardless of whether the reservation system is operated and maintained by the multisite timeshare plan, a managing entity, an exchange company, or any other

Monday, May 23, 2005 HOUSE JOURNAL — 75th Day 4107

[(19)ii"Seller" means any person, including a developer, who in the ordinary course of business offers a timeshare interest for sale to the public, but does not include a person who acquires a timeshare interest for his use and subsequently offers it for resale.

[(20)ii"Substantially complete" means that the timeshare unit, including furnishings and appliances, is complete as represented in the timeshare disclosure statement, the accommodations are ready for occupancy, and the amenities dedicated to the timeshare regime are as represented in the timeshare disclosure statement.

[(21)ii"Timeshare estate" means any arrangement under which the purchaser receives a freehold estate or an estate for years in a timeshare property and the right to use an accommodation or amenities, or both, in that property for a timeshare period on a recurring basis.]

(22)ii"Single-site timeshare plan" means a timeshare plan in which a timeshare purchaser's right to use and occupy accommodations is limited to a single timeshare property. A single-site timeshare plan that includes an incidental use right or a program under which the owner of a timeshare interest at a specific timeshare property may exchange a timeshare period for another timeshare period at the same or another timeshare property under common management does not transform the single-site timeshare plan into a multisite timeshare plan.

(23)ii"Timeshare disclosure statement" means a written statement that includes the information required by Section 221.032 [201.032].

(24)i[(23)]ii"Timeshare estate [expenses]" means an arrangement under which the purchaser receives a right to occupy [expenditures, charges, or liabilities for the operation of] a timeshare property and an estate interest in the real property [or timeshare system, including any allocations to maintain reserves but excluding any purchase money payable for timeshare interests:

[(A)iiincurred in connection with a timeshare interest by or on behalf of the owner of all timeshare interests in a timeshare property; and

[(B)iiimposed on timeshare interests by the managing entity].

(25)i[(24)]ii"Timeshare interest" means a timeshare estate or timeshare use.

(26)i[(25)]ii"Timeshare instrument" means a master deed, master lease, declaration, or any other instrument used in the creation of a timeshare plan [regime].

[(26)ii"Timeshare liability" means the liability for timeshare expenses allocated to each timeshare interest.]

(27)ii"Timeshare period" means the period within which the purchaser of a timeshare interest is entitled to the exclusive possession, occupancy, and use of an accommodation [a timeshare unit and to the general use of all amenities].

4108 79th LEGISLATURE — REGULAR SESSION

(28)ii"Timeshare plan" means any arrangement, plan, scheme, or similar method, excluding an exchange program but including a membership agreement, sale, lease, deed, license, or right-to-use agreement, by which a purchaser, in exchange for consideration, receives an ownership right in or the right to use accommodations for a period of time less than a year during a given year, but not necessarily consecutive years.

(29)i[(28)]ii"Timeshare property" means:

(A)iione or more [all real property that is subject to a timeshare declaration, including all] accommodations and any related amenities subject to the same timeshare instrument; and

(B)iiany other property or property rights appurtenant to the accommodations and amenities.

[(29)ii"Timeshare regime" means the real property use that is created by the filing and recordation of a master deed, master lease, or declaration.]

(30)ii["Timeshare unit" means any accommodation that is divided into timeshare periods.

[(31)]ii"Timeshare use" means any arrangement [other than a hotel or motel operation, whether by lease, rental agreement, license, use agreement or other means,] under which the purchaser receives a right to occupy [use an accommodation or amenities or both for] a timeshare property [period on a recurring basis], but under which the purchaser does not receive an [a freehold] estate interest [or an estate for years] in the [a] timeshare property.

[(32)ii"Timeshare fees" means an amount assessed against or collected from an owner by a managing entity in a fiscal year, without regard to the frequency with which the amount is assessed or collected.

[(33)ii"Owner" means a person who holds a legal or equitable interest in a timeshare interest in timeshare property subject to the requirements of this Act.

[(34)ii"Timeshare system" means two or more timeshare properties located in separate geographic areas that are:

[(A)iimanaged by the same managing entity; and

[(B)iisubject to a written arrangement or agreement whereby an owner of a timeshare interest in any one of the timeshare properties may use a timeshare unit and the amenities of any of the other timeshare properties as provided in the project instruments.]

SECTIONi2.iiSection 221.003, Property Code, is amended by adding Subsections (d) and (e) to read as follows:

(d)iiA timeshare property subject to this chapter is not subject to Chapter 209 unless an individual timeshare owner continuously occupies a single timeshare property as the owner's primary residence 12 months of the year.

(e)iiIf a person with a specific program that might otherwise be subject to this chapter received from the commission, before January 31, 2005, a written determination that the program is exempt from this chapter as the chapter existed when the determination was made, the program remains exempt from this chapter if:

(1)iithe program does not vary materially from the terms on which the exemption was granted; or

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(2)iithe program varies materially from the terms on which the exemption was granted, but the person receives from the commission a new written determination that the program is exempt from this chapter.

SECTIONi3.iiSections 221.011, 221.012, 221.013, and 221.014, Property Code, are amended to read as follows:

Sec.i221.011.iiDECLARATION. (a) The developer of a timeshare plan any part of which is located in this state must record the timeshare instrument in this state. When a person [who is a developer, the sole owner, or the co-owner of a building or proposed building or buildings] expressly declares an intent to subject the property to a timeshare plan through the recordation of a timeshare instrument [master deed, master lease, or declaration] that sets forth the information provided in Subsections (b) and (c), [and that sets forth the intent to submit that property to a timeshare regime,] that property shall be established thenceforth as a timeshare plan [regime].

(b)iiThe declaration made in a timeshare instrument recorded under this section must include:

(1)iia legal description of the timeshare property, including a ground plan indicating the location of each existing or proposed building included in [to be constructed on] the timeshare plan [property];

(2)iia description of each existing or proposed accommodation [timeshare unit], including the location and square footage of each unit and an interior floor plan of each existing or proposed building;

(3)iia description of any [the] amenities furnished or to be furnished to the purchaser;

(4)iia statement of the fractional or percentage part that each timeshare interest bears to the entire timeshare plan [regime];

(5)iiif applicable, a statement that the timeshare property is part of a multisite timeshare plan [system]; and

(6)iiany additional provisions that are consistent with this section.

(c)iiAny timeshare interest created under this section is subject to [an interest in real property within the meaning of] Section 1101.002(5), Occupations Code, but Sections 1101.351(a)(1) and (c), Occupations Code, do not apply to the acts of an exchange company in exchanging timeshare periods [under a timeshare program].

[(d)iiAny timeshare interest located wholly without this state may be sold or otherwise disposed of within this state if the timeshare property is in full compliance with the legal requirements of and may be validly sold or otherwise disposed of as a timeshare property in the jurisdiction in which the timeshare property is located and if all information required in this section is included in the disclosure statement.]

Sec.i221.012.iiCONVEYANCE AND ENCUMBRANCE. Once the property is established as a timeshare plan [regime], each timeshare interest may be individually conveyed or encumbered and shall be entirely independent of all other timeshare interests in the same timeshare property. Any title or interest in a timeshare interest may be recorded.

4110 79th LEGISLATURE — REGULAR SESSION

Sec.i221.013.iiCOMMON OWNERSHIP. (a) Any timeshare interest may be jointly or commonly owned by more than one person.

(b)iiA timeshare estate may be jointly or commonly owned in the same manner as any other real property interest in this state.

Sec.i221.014.iiPARTITION. An action for partition of a timeshare interest may not be maintained during the term of a timeshare plan [unless expressly permitted by the declaration].

SECTIONi4.iiSubchapter C, Chapter 221, Property Code, is amended by amending Sections 221.021, 221.022, 221.023, 221.024, and 221.025 and adding Section 221.026 to read as follows:

Sec.i221.021.iiREGISTRATION REQUIRED. (a) Except as provided by Subsection (b) or (d) of this section or another provision of this chapter, a [A] person may not offer or dispose of a timeshare interest unless the timeshare plan [property] is registered with the commission.

(b)iiBefore a registration application for a timeshare plan is submitted or completed, a [A] developer or any person acting on the developer's [his] behalf may accept a reservation and a deposit from a [the] prospective purchaser if the deposit is placed in a segregated [an] escrow account with an independent escrow agent and if the deposit is fully refundable at any time at the request of the purchaser. The deposit may not be forfeited unless the purchaser affirmatively creates a binding obligation by a subsequent written instrument.

(c)iiA developer or any person [anyone] acting on the developer's [his] behalf may not offer or dispose of [or encumber] a timeshare interest during any period within which there is in effect an order by the commission or by any court of competent jurisdiction revoking or suspending the registration of the timeshare plan [property] of which such timeshare interest is a part.

(d)iiAt the developer's request, the commission may authorize the developer to conduct presales before a timeshare plan is registered if the registration application is administratively complete, as determined by the commission or as established by commission rule. The authorization for presales permits the developer to offer and dispose of timeshare interests during the period the application is in process. To obtain a presales authorization, the developer must:

(1)iisubmit a written request to the commission for an authorization to conduct presales;

(2)iisubmit an administratively complete application for registration, including appropriate fees and exhibits required by the commission; and

(3)iiprovide evidence acceptable to the commission that all funds received by the developer will be placed with an escrow agent with instructions requiring the funds to be retained until a registration application is complete as determined by the commission.

(e)iiDuring the presales authorization period, the developer must:

(1)iiprovide to each purchaser and prospective purchaser a copy of the proposed timeshare disclosure statement that the developer submitted to the commission with the initial registration application; and

(2)iioffer each purchaser the opportunity to cancel the purchase contract as provided by Section 221.041.

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(f)iiAfter the final timeshare disclosure statement is approved by the commission, the developer must:

(1)iigive each purchaser and prospective purchaser a copy of the final timeshare disclosure statement; and

(2)iiif the commission determines that a materially adverse change exists between the disclosures contained in the proposed timeshare disclosure statement and the final timeshare disclosure statement, provide the purchaser a second opportunity to cancel the purchase contract as provided by Section 221.041.

(g)iiThe requirements of this subchapter remain in effect during the period the developer offers or disposes of timeshare interests of the timeshare plan registered with the commission. The developer must notify the commission in writing when all of the timeshare interests of a timeshare plan have been disposed of.

Sec.i221.022.iiAPPLICATION FOR REGISTRATION. (a) An application for registration filed under this section must include a timeshare disclosure statement and any required exchange disclosure statement required by Section 221.033, recorded [201.033, certified] copies of all timeshare instruments, and other information as may be required by the commission. If the timeshare property is a newly developed property, recorded copies of the timeshare instruments must be provided promptly after recorded copies are available from the entity with which the instruments are recorded. If existing or proposed accommodations are in a condominium, an applicant who complies with this section is not required to prepare or deliver a condominium information statement or a resale certificate as described by Chapter 82.

(b)iiIf existing or proposed accommodations [timeshare units] are in a condominium or similar development, the application for registration must contain the project instruments of that development and affirmatively indicate that the creation and disposition of timeshare interests are not prohibited by those instruments. If the project instruments do not expressly authorize the creation and disposition of timeshare interests, the application must contain evidence that existing owners of the condominium development were provided written notice, at least 60 days before the application for registration, that timeshare interests would be created and sold. If the project instruments prohibit the creation or disposition of timeshare interests, the application must contain a certification by the authorized representative of all existing owners that the project instruments have been properly amended to permit that creation and disposition.

(c)iiThe commission may accept an abbreviated registration application from a developer of a timeshare plan if all accommodations in the plan are located outside this state. The developer must file written notice of the intent to register under this section not later than the 15th day before the date the abbreviated application is submitted.

(d)iiA developer of a timeshare plan with any accommodation located in this state may not file an abbreviated application unless:

(1)iithe developer is a:

(A)iisuccessor in interest after a merger or acquisition; or

4112 79th LEGISLATURE — REGULAR SESSION

(B)iijoint venture in which the previous developer or its affiliate is a partner or a member; and

(2)iithe previous developer registered the timeshare plan in this state preceding the merger, acquisition, or joint venture.

(e)iiA developer filing an abbreviated application must provide:

(1)iithe legal name and any assumed names and the principal office location, mailing address, telephone number, and primary contact person of the developer;

(2)iithe name, location, mailing address, telephone number, and primary contact person of the timeshare plan;

(3)iithe name and address of the developer's authorized or registered agent for service of process in this state;

(4)iithe name, primary office location, mailing address, and telephone number of the managing entity of the timeshare plan;

(5)iithe certificate or other evidence of registration from any jurisdiction in which the timeshare plan is approved or accepted;

(6)iithe certificate or other evidence of registration from the appropriate regulatory agency of any other jurisdiction in the United States in which some or all of the accommodations are located;

(7)iia declaration stating whether the timeshare plan is a single-site timeshare plan or a multisite timeshare plan;

(8)iiif the plan is a multisite timeshare plan, a declaration stating whether the plan consists of specific timeshare interests or nonspecific timeshare interests;

(9)iia disclosure of each jurisdiction in which the developer has applied for registration of the timeshare plan and whether the timeshare plan, the developer, or the managing entity used were denied registration or, during the five-year period before the registration application date, were the subject of a final adverse disposition in a disciplinary proceeding;

(10)iiif requested by the commission, copies of any disclosure documents required to be provided to purchasers or filed with any jurisdiction that approved or accepted the timeshare plan;

(11)iithe appropriate filing fee; and

(12)iiany other information reasonably requested by the commission or required by commission rule.

(f)iiA foreign jurisdiction providing evidence of registration as provided by Subsection (e)(6) must have registration and disclosure requirements that are substantially similar to or stricter than the requirements of this chapter.

(g)iiThe commission shall investigate all matters relating to the application and may in its discretion require a personal inspection of the proposed timeshare property by any persons designated by it. All direct expenses incurred by the commission in inspecting the property shall be borne by the applicant. The commission may require the applicant to pay an advance deposit sufficient to cover those expenses.

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Sec.i221.023.iiAMENDMENT OF REGISTRATION. The developer shall [or managing entity shall promptly] file amendments to the registration reporting to the commission any materially [material and] adverse change in any document contained in the registration not later than the 30th day after the date the developer knows or reasonably should know of the change. The developer may continue to offer and dispose of timeshare interests under the existing registration pending review of the amendments by the commission if the materially adverse change is disclosed to prospective purchasers.

Sec.i221.024.iiPOWERS OF COMMISSION. (a) The commission may prescribe and publish forms and adopt rules necessary to carry out the provisions of this chapter and may suspend or revoke the registration of any developer, place on probation the registration of a developer that has been suspended or revoked, reprimand a developer, impose an administrative penalty of not more than $10,000, or take any other disciplinary action authorized by this chapter [seller] if, after notice and hearing, the commission determines that a developer [seller] has materially violated this chapter, the Deceptive Trade Practices-Consumer Protection Act (Subchapter E, Chapter 17, Business & Commerce Code), or the Contest and Gift Giveaway Act (Chapter 40, Business & Commerce Code). [The commission may bring suit in a district court of Travis County, Texas, to enjoin a violation of this Act or for any other relief as the court may deem appropriate.]

(b)iiThe commission may:

(1)iiauthorize specific employees to conduct hearings and issue final decisions in contested cases; and

(2)ii[shall] establish reasonable fees for forms and documents it provides to the public and for the filing or registration of documents required by this chapter.

(c)iiIf the commission initiates a disciplinary proceeding under this chapter, the person is entitled to a hearing before the commission or a hearing officer appointed by the commission. The commission by rule shall adopt procedures to permit an appeal to the commission from a determination made by a hearing officer in a disciplinary action.

(d)iiThe commission shall set the time and place of the hearing.

(e)iiA disciplinary procedure under this chapter is governed by the contested case procedures of Chapter 2001, Government Code.

(f)iiThe commission may file a suit in a district court of Travis County to prevent a violation of this chapter or for any other appropriate relief.

(g)iiJudicial review of a commission order imposing an administrative penalty is:

(1)iiinstituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and

(2)iiby trial de novo.

Sec.i221.025.iiEFFECT OF REGISTRATION ON OTHER LAWS: EXEMPTION [SALE EXEMPT] FROM CERTAIN LAWS [SECURITIES ACT]. (a) A developer's compliance with [The filing of a registration under] this

4114 79th LEGISLATURE — REGULAR SESSION

(b)iiA timeshare plan created as a condominium regime before January 1, 1994, that complies with this chapter is exempt from the requirements of Section 81.112 relating to club membership.

(c)iiA timeshare plan subject to Chapter 82 that complies with this chapter is exempt from the requirements of Section 82.0675 relating to club membership.

(d)iiA developer's compliance with this chapter as to any timeshare plan exempts any company, as defined by Chapter 181, Finance Code (Texas Trust Company Act), that holds title to the timeshare interests in the timeshare plan from compliance with the Texas Trust Company Act as to the company's activities relating to the holding of that title.

Sec.i221.026.iiISSUANCE AND RENEWAL OF REGISTRATION. (a) The commission by rule shall adopt requirements for the issuance and renewal of a developer's registration under this chapter, including:

(1)iithe form required for application for registration or a renewal of registration; and

(2)iiany supporting documentation required for registration or renewal of registration.

(b)iiThe commission shall issue or renew a registration under this chapter for a period not to exceed 24 months.

(c)iiThe commission may assess and collect a fee for the issuance or renewal of a registration under this chapter.

(d)iiThe commission may assess and collect a late fee if the commission has not received the fee or any supporting documentation required before the 61st day after the date a registration is issued or renewed under this section.

(e)iiFailure to pay a renewal fee or late fee is a violation of this chapter.

SECTIONi5.iiSections 221.031 and 221.032, Property Code, are amended to read as follows:

Sec.i221.031.iiADVERTISEMENTS AND PROMOTIONS [PROMOTIONAL DISCLOSURE STATEMENT]. (a) At any time, the commission may request a developer to file for review by the commission any advertisement used in this state by the developer in connection with offering a timeshare interest. The developer shall provide the advertisement not later than the 15th day after the date the commission makes the request. If the commission determines that the advertisement violates this chapter or Chapter 40, Business & Commerce Code, the commission shall notify the developer in writing, stating the specific grounds for the commission's determination not later than the 15th day after the date the commission makes its determination. The commission may grant the developer provisional approval for the advertisement if the developer agrees to correct the deficiencies identified by the commission. A developer, on its own initiative, may submit any proposed advertisement to the commission for review and approval by the commission.

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(b)iiAny advertisement that contains a promotion in connection with the offering of a timeshare interest must comply with Chapter 40, Business & Commerce Code.

(c)iiAs provided by Subsections (d) and (e), an advertisement that contains a [Before the use of any] promotion in connection with the offering of a timeshare interest must include, in addition to any disclosures required under Chapter 40, Business & Commerce Code, [the person who intends to use the promotion shall include] the following [information in its advertisements to the prospective purchaser]:

(1)iia statement to the effect that the promotion is intended to solicit purchasers of timeshare interests;

(2)iiif applicable, a statement to the effect that any person whose name is obtained during the promotion may be solicited to purchase a timeshare interest;

(3)iithe full name of the developer [and seller] of the timeshare property; and

(4)iiif applicable, the full name and address of any marketing company involved in the promotion of the timeshare property, excluding the developer or an affiliate or subsidiary of the developer.

(d)iiAn advertisement containing the disclosures required by Chapter 40, Business & Commerce Code, and Subsection (c) must be provided in writing or electronically:

(1)iiat least once before a scheduled sales presentation; and

(2)iiin a reasonable period before the scheduled sales presentation to ensure that the recipient receives the disclosures before leaving to attend the sales presentation.

(e)iiThe developer is not required to provide the disclosures required by this section in every advertisement or other written, oral, or electronic communication provided or made to a recipient before a scheduled sales presentation[;

[(5)iithe complete rules of the promotion; and

[(6)iithe method of awarding, the odds of winning, a statement of the retail value of prizes, gifts, or other benefits under the promotion as set forth in Subsection (b) of this section, the geographic region in which the promotion is being conducted, the beginning and ending dates of the promotion, and the date by which each prize, gift, or benefit will be awarded or conferred].

[(b)iiFor the purposes of this section, the retail value of the item is the price at which a substantial number of sales of the exact item, having the same manufacturer, brand, model number, and type, have been made to members of the general public by at least two principal retail outlets in the State of Texas during the six months immediately preceding the offering of the prize or gift described in the promotion. However, if a substantial number of sales of a particular prize have not been made in the State of Texas in the six months immediately preceding the offering of the prize or gift in a promotion or if the developer elects, then the retail value of the prize or gift is the actual unit cost of the prize or the gift, net of any discounts or rebates to the developer, plus 200 percent.

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[Provided, however, in the event a prize or gift involves lodging, airfare, trips, or recreational activity, the retail value shall be the retail sales price of the lodging, airfare, trips, or recreational activity to a member of the general public not involved in a promotional or other discount transaction.]

Sec.i221.032.iiTIMESHARE DISCLOSURE STATEMENT. (a) Before the signing of any agreement [or contract] to acquire a timeshare interest, the developer shall provide a timeshare disclosure statement to the prospective purchaser and shall obtain from the purchaser a written acknowledgement of receipt of the timeshare disclosure statement.

(b)iiThe timeshare disclosure statement for a single-site timeshare plan or a multisite timeshare plan that includes a specific timeshare interest must include:

(1)iithe type of timeshare plan offered and the name and address of:

(A)iithe developer; and

(B)iithe single site or specific site offered for the multisite timeshare plan [and the name and specific location of the timeshare property];

(2)iia description of the duration and operation of the timeshare plan;

(3)iia description of the existing or proposed accommodations, including the type and number of timeshare interests in the accommodations expressed in periods of seven-day use availability or other time increment applicable to the timeshare plan. The description of each type of accommodation included in the timeshare plan shall be categorized by the number of bedrooms, the number of bathrooms, and sleeping capacity, and shall include a statement indicating whether the accommodation contains a full kitchen, which means a kitchen that has a minimum of a dishwasher, range, sink, oven, and refrigerator. If the accommodations are proposed or incomplete, a schedule for commencement, completion, and availability of the accommodations shall be provided [amenities, timeshare property, and any project or development within which the timeshare property is located or of which it is a part; the total number of timeshare units in the timeshare property and whether and under what circumstances that number may be increased or decreased; and, if a timeshare interest includes amenities not yet in existence, the commencement and completion schedule of the proposed amenities];

(4)i[(3)]iia description of any existing or proposed amenities of the timeshare plan and, if the amenities are proposed or incomplete, a schedule for commencement, completion, and availability of the amenities [the timeshare interests currently available for disposition and, if applicable, the types and number of units available];

(5)iithe extent to which financial arrangements have been provided for the completion of all promised accommodations and amenities that are committed to be built;

(6)iia description of the method and timing for performing maintenance of the accommodations;

(7)iia statement indicating that, on an annual basis, the sum of the nights that purchasers are entitled to use the accommodations does not exceed the number of nights the accommodations are available for use by the purchasers;

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(8)iia description of the method by which purchasers' use of the accommodations is scheduled;

(9)i[(4)]iia statement that an association [a council of purchasers] exists or is expected to be created or that such an association [a council] does not exist and is not expected to be created and, if such an association [a council] exists or is reasonably contemplated, a description of its powers and responsibilities;

(10)iirelating to the single-site timeshare plan or the specific timeshare interest of a multisite timeshare plan, copies of the following documents, if applicable, including any amendments to the documents, unless separately provided to the purchaser simultaneously with the timeshare disclosure statement:

(A)iithe declaration;

(B)iithe association articles of incorporation;

(C)iithe association bylaws;

(D)iithe association rules; and

(E)iiany lease or contract, excluding the purchase contract and other loan documents required to be signed by the purchaser at closing;

(11)i[(5)]iithe name and principal address of the managing entity and a description of the procedures, if any, for altering the powers and responsibilities of the managing entity and for removing or replacing it;

(12)iithe current annual [(6)iia complete] budget, if available, or the projected annual budget for the timeshare plan or timeshare properties managed by the same managing entity if assessments are deposited in a common account. The budget [for the operation of the timeshare property for a period of one year after the first disposition of a timeshare interest in the property, and thereafter, the current operating budget, which operating budget] must include:

(A)iia statement of the amount reserved or budgeted for repairs, replacements, and refurbishment [the total amount included as a reserve for the maintenance of the timeshare property and for the repair or replacement of personal property or fixtures];

(B)iithe projected common expense liability, if any, by category of expenditure for the timeshare plan or timeshare properties managed by the same managing entity [total amount of any other reserve and the purpose of the reserve];

(C)ii[the projected timeshare liability expressed by categories of expenditure for all timeshare interests;

[(D)iithe timeshare liability projected by categories of expenditures for each timeshare interest;

[(E)]iithe name and address of the person who prepared the operating budget; and

(D)i[(F)]iithe assumptions on which the operating budget is based;

(13)iithe projected assessments and [(7)] a description of the [nature and estimated amount of any timeshare liability that may in the future be assessed and the] method for calculating and apportioning those assessments among purchasers [and formula for assessing the timeshare liability];

(14)iiany initial fee or special fee due from the purchaser at closing, together with a description of the purpose and method of calculating the fee;

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(15)i[(8)]iia description of any lien, defect, or encumbrance on or affecting title to the timeshare interest and, if applicable, a copy of each written warranty provided by the developer [service that the developer or person acting on his behalf provides or expense that is paid that reasonably may be expected to become a timeshare liability, and the projected timeshare liability attributable to that service or expense];

(16)i[(9)]iia description of any bankruptcy that is pending or that has occurred within the past five years, pending civil or criminal suit, adjudication, or disciplinary actions material to the timeshare plan of which the developer has knowledge [the existing or proposed amenities of the timeshare property and, if the amenities are proposed or not yet complete or fully functional, a schedule for the projected commencement, completion, and availability of those amenities];

(17)iia description of any financing offered by or available through the developer;

(18)iiany current or anticipated [(10)iia description and amount of any current or expected dues, assessments,] fees[,] or charges to be paid by timeshare purchasers for the use of any accommodations or amenities related to the timeshare plan, and a statement that the fees or charges are subject to change [or for any other purpose];

(19)i[(11)iia description of any unsatisfied final judgment against the developer, seller, managing entity, or exchange company with which the developer is under contract, but not including any individual sales agent or representative who offers a timeshare interest;

[(12)iia description and status of any pending lawsuit or administrative action of which the developer has actual knowledge that may materially affect a timeshare interest;

[(13)]iia description and amount of insurance coverage provided for the protection of the purchaser;

(20)i[(14)]iithe extent to which a timeshare interest may become subject to a tax lien or other lien arising out of claims against purchasers of different timeshare interests;

(21)i[(15)]iia description of those matters required by Section 221.041 [201.041];

(22)i[(16)]iia statement disclosing any right of first refusal or other restraint on the transfer of all or any portion of a timeshare interest;

(23)i[(17)]iia statement disclosing that any deposit made in connection with the purchase of a timeshare interest must [will] be held by [in] an escrow agent [account] until expiration of any right to cancel the contract and that any deposit must be [or any later time specified in the contract and will be] returned to the purchaser if the purchaser [he] elects to exercise the [his] right of cancellation; or, if the commission accepts from the developer a surety bond, irrevocable letter of credit, or other form of financial assurance instead of an escrow deposit, a statement disclosing that the developer has provided a surety bond, irrevocable letter of credit, or other form of financial assurance in an

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(24)i[(18)]iiif applicable, a statement that the assessments [timeshare property is part of a timeshare system and that timeshare fees] collected from the purchasers [owners] may be placed in a common account with the assessments [timeshare fees] collected from the purchasers [owners] of other timeshare properties managed by the same managing entity [participating in the timeshare system];

(25)iiif the timeshare plan provides purchasers with the opportunity to participate in an exchange program, a description of the name and address of the exchange company and the method by which a purchaser accesses the exchange program; and