Agenda Packet TC 07/02/2009 - Supplement
July 2, 2009
Number 22
SPECIAL SESSION BEGINS
A special legislative session began on July 1; it can last a maximum of 30 days. The governor
called lawmakers back to Austin for the following reasons:
• To consider legislation that: (1) provides for extending the existence of several state
agencies that were subject to sunset review by the 81st Legislature and that will be
abolished without legislative action under the state's Sunset Act; and (2) changes the
review schedule for certain state agencies (including, most notably, TxDOT) to balance
the workload of the Sunset Advisory Commission.
• To consider legislation relating to the issuance by the Texas Transportation Commission
of general obligation bonds for highway improvement projects, and to the creation,
administration, financing and use of a Texas Transportation Revolving Fund to provide
financial assistance for transportation projects.
• To consider legislation relating to the date on which the authority of the Texas
Department of Transportation and a regional mobility authority to enter into a
comprehensive development agreement expires.
It is possible that other items could be added to the “call” for consideration during the special
session. TML staff will monitor the session closely for any city-related developments and will
keep city officials informed.
2
GOVERNOR’S VETOES INCLUDE
CITY-RELATED BILLS
Governor Rick Perry has vetoed 35 bills passed by the legislature during the regular session.
Two of the 35 were city-related bills described in the League’s final legislative wrap-up of June
11. Those two vetoes are detailed below:
H.B. 2820 – Professional Services: would have added landscape architectural and geoscientific
services to the Professional Services Procurement Act. According to the governor’s veto
message, the bill “would prevent price-based competition for services by geoscientists and
landscape architects, and therefore does not guarantee the best value for taxpayers when
government entities contract for these services.”
S.B. 686 – Gas Pipelines: this bill would have applied to a natural gas pipeline located or
proposed to be located in: (1) a county in which a part of the Barnett Shale natural gas field is
known to be located; (2) a county that is located within the boundaries of a metropolitan
planning organization; or (3) the corporate limits of a city. The bill would have provided, among
other things, that a gas utility is entitled to lay, maintain, and operate a natural gas pipeline
through, under, along, or across a controlled access state highway only if: (1) the pipeline is
subject to the jurisdiction, control, and regulation of the Railroad Commission of Texas and
subject to safety standard requirements pertaining to gas pipeline facilities and transmission lines
for the transportation of gas; (2) the pipeline complies with all applicable state rules consistent
with the bill and all applicable federal regulations on the accommodation of utility facilities on
the highway or right-of-way, including rules and regulations relating to the horizontal and
vertical location of the pipeline; and (3) the highway and associated facilities are promptly
restored to their former condition of usefulness after the installation or maintenance of the
pipeline, as applicable, is complete. The bill would have provided that TxDOT may require a gas
utility to relocate a facility at the cost of the gas utility to accommodate construction or
expansion of a highway or for any other public work unless the gas utility has a property interest
in the land occupied by the facility to be relocated. The bill was not to be construed to limit the
authority of a gas utility to use a public right-of-way under any other law, and the bill was not to
be construed to affect the authority of a city to regulate the use of a public right-of-way by a gas
utility under any other law or to require payment of any applicable franchise fee.
The governor’s veto message stated the following: “[w]hile I agree that this bill would provide a
benefit to communities and reduce the impact on private property owners, the bill conflicts with
House Bill No. 2572, which was signed on June 19, 2009, and which accomplishes the same
objectives statewide while ensuring that pipelines are installed using the highest safety
standards.”
3
TEXAS DEPARTMENT OF STATE HEALTH SERVICES
ADOPTS NEW ANIMAL EUTHANASIA RULES
Over the past few months, the TML staff has been in contact with the staff of the Texas
Department of State Health Services (DSHS), negotiating an addition to the agency’s proposed
animal euthanasia rule changes. The proposed rules provided that a shelter (including a city-
owned shelter) should scan an animal for an identifying microchip before euthanizing the animal.
While this is an admirable goal, many small cities do not have scanning machines capable of
detecting or reading these chips. The League asked the DSHS staff to add language explicitly
stating that a city would not be required to purchase a microchip scanning machine in order to
comply with the proposed rule. The DSHS staff agreed, and the language was added.
Unfortunately, the Texas Health and Human Services Commission, which has final review
authority over DSHS rules, voted to remove the negotiated provision.
The DSHS staff has stated its belief that because the rule uses the word “should” rather than
“must,” it will have the same effect as it would have had with the TML language included: that a
city that does not own a machine will not be required to purchase one in order to comply with the
rules. The final rule will appear in the July 3 issue of the Texas Register.
U.S. SUPREME COURT ISSUES
VOTING RIGHTS OPINION
The U.S. Supreme Court recently released its ruling in Northwest Austin Municipal Util. Dist.
No. One v. Holder. The case deals with the “preclearance” requirement in Section 5 of the
Voting Rights Act of 1965 (the “Act”). Section 5 prohibits “covered jurisdictions” from making
any changes to voting procedures without first obtaining approval, known as preclearance, from
the U.S. Department of Justice. “Covered jurisdictions” are states and political subdivisions that
have a history of racial discrimination in voting. Texas and Texas cities are covered
jurisdictions. The preclearance provisions require that any change in a voting procedure must
avoid the effect of denying or abridging the right of an individual to vote because of race or
color. The Northwest Austin Municipal Utility District (MUD) asked the Court to declare the
Act unconstitutional, alleging that there is little evidence of continued discrimination in voting
practices.
The Court concluded that the Act is constitutional and still necessary. However, it also
authorized the MUD to seek an exemption from the Act, known as a “bailout,” if it has no recent
evidence of discrimination. States and counties have long been able to seek a “bailout” from the
preclearance requirements of Section 5 (although only 17 have done so since 1965), but cities
have not been permitted to do so.
The bailout process involves seeking a declaratory judgment from a three-judge district court in
Washington, D.C. and a showing that the political subdivision meets four very specific criteria
4
with respect to voting rights violations and constructive efforts to eliminate intimidation and
harassment of voters. Because the process can be both lengthy and costly, a city should seriously
consider whether it is more beneficial – both financially and politically – to comply with the
existing preclearance requirements. In any case, city officials should seek advice from local
legal counsel on the requirements of the Act.
THE FTC RELEASES GUIDE ON IMPLEMENTATION
OF IDENTITY THEFT RULES
Federal Trade Commission (FTC) rules requiring city utilities to adopt identity theft programs
will be enforced beginning on August 1, 2009, pursuant to the Fair and Accurate Credit
Transactions (FACT) Act of 2003. The FTC has recently released a guide for businesses,
including utilities, on how to implement the red flag rules. The guide is available at
http://www.ftc.gov/redflagsrule?utm_source=delivra&utm_medium=email&utm_campaign=frup
date. City officials should contact their city attorney or the TML Legal Department with any
questions regarding adoption and implementation of a program. Contact Laura Mueller at the
TML Legal Department at 512-231-7400 or by email at laura@tml.org.
(For more information, please see “FTC Requires Businesses to Adopt Identity Theft Programs”
in the August 21, 2008, edition of the TML Legislative Update; and “FTC Identity Theft Rules”
in the October 9, 2008, edition of the TML Legislative Update.)
DEADLINE FOR ENERGY EFFICIENCY
AND CONSERVATION BLOCK GRANTS EXTENDED
The United States Department of Energy has made available a total of nearly $163 million in
Energy Efficiency and Conservation Block Grant (EECBG) funding to “entitlement” cities
(cities with populations of more than 35,000). The EECBG program provides grants to local
governments to fund projects that reduce energy use and fossil fuel emissions and that improve
energy efficiency.
Each Texas entitlement city has been allocated a specific amount and must apply directly to the
U.S. Department of Energy in order to receive that funding. While the application deadline for
EECBG entitlement funds was originally Thursday, June 25, 2009, the U.S. Department of
Energy has extended the deadline until Monday, August 10, at 8 p.m. Eastern time.
For more information on how your city can apply for these funds, please visit the U.S.
Department of Energy’s EECBG Web site at http://www.eecbg.energy.gov/. More information
can also be found at http://www.tml.org/legislative_stimulus_energy.html.
5
ADDENDA
The following city-related bills were passed during the regular session but were not summarized
in the June 11 issue of the TML Legislative Update:
H.B. 1530 – Mosquito Control: moves licensure of health-related mosquito pest control from
the Department of State Health Services (DSHS) to the Texas Department of Agriculture (TDA),
potentially allowing mosquito applicators to be licensed for a reduced fee or no fee at all, since
TDA is not required to recoup its costs through fees, while DSHS is required to do so by statute.
S.B. 636 – Sales Taxes: does the following in relation to sourcing of city sales taxes: (1)
provides that when goods are shipped within Texas by a retailer with more than one legal “place
of business” for sales tax purposes, sales taxes shall be generally sourced at the location where
the retailer first received the order for the goods, provided the order was placed in person; and
(2) provides an exception to number 1 above for cities with certain economic development
agreements in place prior to January 1, 2009, provided such cities provide notice to the
comptroller regarding those agreements.
The following bill summary appeared in the June 11 issue but omitted a population bracket. The
correct summary reads as follows:
H.B. 3072 – 4A/4B Corporations: permits a 4A/4B economic development corporation, in a
city with a population of 20,000 or less, to receive transfers of real property from a city, provided
there is an agreement and transfer instrument that requires the corporation to use the property in
a manner that promotes a public purpose of the city and provided there is a reverter clause should
the property cease to be used for such a purpose.
TML member cities may use the material herein for any purpose.
No other person or entity may reproduce, duplicate, or distribute any part
of this document without the written authorization of the
Texas Municipal League.
July 6, 2009
Number 22
ADDENDUM
LAWMAKERS WRAP UP SPECIAL SESSION IN TWO DAYS
The Texas Legislature finished off a two-day special session on July 2 by continuing the existence of five state
agencies, including the Texas Department of Transportation (TxDOT), and authorizing the issuance of $2 billion in
highway bonds.
Lawmakers never gave serious consideration to Governor Rick Perry’s call to enact a continuation of the current
authority to privatize toll roads. There is no indication that the governor will call legislators back to Austin to take
up that issue again.
Under S.B.2, which the governor is expected to sign, TxDOT will face sunset review again in 2011. The bill also
establishes a 2011 sunset date for the following additional agencies: the Texas State Affordable Housing
Corporation, the Texas Department of Insurance, the Texas Commission on Environmental Quality, the Texas Water
Development Board, the Railroad Commission of Texas, and the Texas Racing Commission.
The following agencies were given a 2013 sunset date: the Texas Board of Criminal Justice, the Texas Department
of Criminal Justice, and the Health and Human Services Commission.
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2680
Alarm Date Between {01/01/2009} And
{02/20/2009}
TCE
Incident Type Report (Summary)
Incident Type Count
Pct of
Incidents
Total
Est Loss
Pct of
Losses
1 Fire
140 Natural vegetation fire, Other 1 1.28 %$0 0.00 %
1 1.28 %$0 0.00 %
3 Rescue & Emergency Medical Service Incident
311 Medical assist, assist EMS crew 5 6.41 %$0 0.00 %
321 EMS call, excluding vehicle accident with injury32 41.03 %$0 0.00 %
322 Motor vehicle accident with injuries 3 3.85 %$0 0.00 %
324 Motor Vehicle Accident with no injuries 1 1.28 %$0 0.00 %
41 52.56 %$0 0.00 %
4 Hazardous Condition (No Fire)
410 Combustible/flammable gas/liquid condition, other1 1.28 %$0 0.00 %
440 Electrical wiring/equipment problem, Other 1 1.28 %$0 0.00 %
444 Power line down 1 1.28 %$0 0.00 %
3 3.85 %$0 0.00 %
5 Service Call
500 Service Call, other 2 2.56 %$0 0.00 %
550 Public service assistance, Other 8 10.26 %$0 0.00 %
552 Police matter 1 1.28 %$0 0.00 %
553 Public service 5 6.41 %$0 0.00 %
5531 Public Education 1 1.28 %$0 0.00 %
17 21.79 %$0 0.00 %
6 Good Intent Call
600 Good intent call, Other 1 1.28 %$0 0.00 %
611 Dispatched & cancelled en route 9 11.54 %$0 0.00 %
661 EMS call, party transported by non-fire agency 1 1.28 %$0 0.00 %
11 14.10 %$0 0.00 %
7 False Alarm & False Call
700 False alarm or false call, Other 3 3.85 %$0 0.00 %
715 Local alarm system, malicious false alarm 1 1.28 %$0 0.00 %
743 Smoke detector activation, no fire - unintentional1 1.28 %$0 0.00 %
5 6.41 %$0 0.00 %
02/20/2009 15:12 1Page
Total Incident Count:78 Total Est Loss:$0