TxDOT prepares its 'Wish List' for the 80th Texas Legislature

Texas Transportation Commission Proposed Issues for the 80th Texas Legislature

(DRAFT: SUBJECT to CHANGE)

Version: 8/24/2006

BUSINESS PROCESS

Administration of MTP- Make it clear that the role of TxDOT in the Medical Transportation Program is limited to the actual delivery of a public transportation service for clients of eligible programs administered by the health and human services agencies and the Texas Workforce Commission, when the program recipient is in need of a public transportation service. Also clarify that TxDOT has no role or responsibility, including any financial responsibility, in performing social services.

Aviation Division Authority – TxDOT can serve as the agent for cities and counties in the design and construction of improvements to general aviation airports, but does not have this authority with other state agencies or special districts. Amend the transportation code to define local government as including any agency or political subdivision of the state.

Comprehensive Review of Land/Building Issues – Exempt TxDOT Property from General Land Office Real Property Reviews. Deposit the proceeds of surplus property sales to the State Highway Fund.

MPO Membership – Federal law requires that MPO policy boards should be made up of local elected officials, officials of public agencies that administer or operate major modes of transportation, and appropriate state officials. State law does not provide for the creation of MPOs, or describe their powers, responsibilities, or membership. Amend transportation code to allow for the creation of MPOs, describe their functions, and authorize the commission to delegate responsibilities to MPOs.

Outdoor Advertising Relocation – Cities that have strict ordinances on outdoor advertising sometimes do not allow TxDOT to relocate a billboard to accomodate a highway project. TxDOT must then buy the structure, which can be very expensive. The proposal provides that outdoor advertising rules superseded locally- imposed ordinances. Allow a city to pay the fair market value of the billboard if it wants to enforce its more restrictive ordinance.

Surety Retainage Bond – The recent Federal highway Administration audit of the TxDOT Disadvantaged Business Enterprise Program revealed noncompliance with a federal regulation regarding the prompt payment of retainage subcontractors. Current state law requires TxDOT to whithhold 5% of a whole contract amount until completion of the entire project and acceptance by TxDOT. The new federal law says TxDOT can either: not withhold retainage, or must make incremental payments in whole as work is accepted. The Transportation Code should be revised to comply with this federal regulation.

FUNDING

Amount Retained by Motor Fuels Distributors - Motor fuels distributors in Texas continue to retain 2% of their gross receipts in what they collect from the motor fuels tax. This amount is set in law and continues even though distributors have reduced administrative requirements as a result of the movement of the point of collection of the tax. Although distributors should continue to receive some compensation for the processing of the state's motor fuels tax, their costs of undertaking this is minor compared to what they retain. Therefore the 2% fee should be revisited and reduced.

Motor Fuel Tax Allocation - State law provides that the Comptroller allocates motor fuel taxes to the State Highway Fund and the Available School Fund on or before the fifth workday after the end of the month. The Comptroller, of course, always makes this transfer on the last day possible so that the maximum amount of interest accrues to General Revenue—not the State Highway Fund. It may be more appropriate to provide for a daily transfer of funds instead of a monthly allocation.

Motor Carrier Fees - The revenue generated by oversize/overweight transportation userfees and motor carrier registration fees is not adequately reinvested in the transportation system and is not used to compensate the system for the disproportionate damage caused by heavier loads. These motor carrier permit and registration fees couid be updated and solely dedicated to the Texas Mobility Fund where they can be used to maximize our limited transportation dollars.

MOTOR VEHICLE

Various Modifications to the Vehicle Title and Registration Laws - Because of multiple changes to portions of the statute and the recodification of the specialty license plate provisions, numerous confiicts exist in current law. Changes are needed to address conflicts in law, provide clarification, allow the department to settle a disabled parking placard case without Attorney General involvement, and to reconcile certain fees.

Temporary Meter Vehicle Dealer Tags - Currently, there is no accounting for how many temporary cardboard tags a dealer issues and no provision to compel printers to identify to whom they deliver the temporary tags. The tags are not secure, are easily duplicated and counterfeited, and provides for wide-spread abuse of the tags. This results in millions of dollars in lost government revenue, contributes to a lack of safety for law enforcement, facilitates criminal activity and promotes uninsured motorists. Current law could be amended to allow the department to issue or contract to issue secure, electronic temporary buyer's, dealer, and converter tags and remove the requirement that the tags be made of cardboard.

Dealer License Term Increases - Because of increasing legislative requirements over the years to process dealer applications, and inadequate staffing levels, a backlog exists in processing dealer applications. This backlog is likely to increase unless extreme measures are taken. Amend the statute to extend the term length to two years so TxDOT can catch up with the backlog.

Lemon Law Eligibility - Since the law was changed in 1999, military personnel, long-term "transient" residents and newcomers to Texas do not have access to the Texas Lemon Law program. The definition of "owner" in the Occupations Code should be changed to mean a person whose new vehicle is registered in Texas, in addition to a person who purchased a new vehicle from a licensed dealer. Add a provision to expand Lemon Law coverage to vehicles that belong to active duty non-resident members of the armed forces in Texas.

Motor Carrier Authority - TxDOT currently has authority to investigate and assess penalties for motor carrier registration violations. However, it has no authority to revoke registrations to collect the penalties assessed for motor carrerier Registration or permitting violations. This limited authority undermines TxDOT's ability to enforce motor carrier statutes and rules and to deter motor carriers from future violations. It also compromises TxDOT's ability to ensure the safety of the traveling public, to protect the value of our transportation infrastructure, and collect revenue for reinvestment into our transportation system.

PROJECT DEVELOPMENT

Advanced Acquisition of Rights of Way - TxDOT cannot generally acquire ROW parcels until after completion of the environmental work. Advanced acquisition of parcels that are likely needed for a transportation project would avoid inflationary impacts and prevent development of the property. Authorize TxDOT to acquire property from willing sellers when their property is identified for possible use in a transportation facility.

Concurrent Jurisdiction of Courts in Eminent Domain Proceedings – Condemnation petitions must be filed with county courts at law (in counties that have them) thus precluding district courts from processing such cases. Eminent domain cases could be processed more efficiently if petitions could be filed in any court with jurisdiction.

County Planning Authority for Transportation Corridors - Currently cities and some counties with larger populations (37of the 254 Texas counties) have the authority to set aside land for a known transportation corridor that will be built sometime in the future. The remaining 217 counties do not have this authority. If property is developed, unsuspecting residents and business owners are forced to relocate in order to make way for the transportation project. Legislation could be enacted to authorize the department and counties to enter into an agreement for the purpose of identifying future transportation corridors within the county. Also, each purchase contract or lease made between a subdivider and a purchaser or lessee of land in the subdivision should contain a statement that the land is within a future transportation corridor.

Delegation of Environmental Approval Processes - Federal legislation authorized a pilot program in which TxDOT is allowed to assume the responsibility of environmental approvals. The USDOT will adopt rules for this delegation of authority, but it is necessary for a change in state laws to take place before TxDOT can participate in this pilot program.

Quality Based. Best Value Engineering - All governmental entities are required to follow the qualifications-based selection procedures of the Professional Services Procurement Act. In the initial selection, value considerations are prohibited under law. Instead, a firm or provider is selected based solely on its qualifications, and then the price of a contract is negotiated with that firm to perform whatever professional architectural, engineering or surveying services may be required- if the provider does not agree to a price deemed fair and reasonable, price is negotiated with the second most qualified proposal. This process is not only lengthy, but may not always provide the best value to taxpayers. The Professional Services Procurement Act could be amended to provide an alternative method of procuring engineering, architectural aand surveying services. While qualifications-based selection should not be eliminated, a market-based alternative that incorporates value in addition to qualifications couid also be permissible.

Right of Entry - Property owners sometimes don’t alIow TxDOT or its agents on property to conduct surveys and appraisals when developing certain transportation projects. TxDOT has a right of entry for toll roads but not for other state highway projects. The department could use this authority for state highway projects.

RAIL

Capitalize the Rail Relocation and Improvement Fund - This fund is already established in the Constitution and needs to be capitalized by the Legislature. Rail relocation and improvements have substantial public benefits. However the high cost of capital improvements mean that the private rail companies do not make many needed rail improvements. The Rail Relocation and Improvement Fund was created and approved by voters to help offset this high cost on projects where there is a public benefit. A revenue source should be identified to fund the Rail Relocation and improvement Fund in statute. The state can choose to reallocate and existing general revenue source or create a new tax/fee. Five possibilities for taxes/fees that might capitalize the rail fund are currently being researched. They include: a diesel fuel tax on trains, a raming/deramping fee charged at rail intermodal facilities, a per-ton mile charge on rail operators traveling within Texas with an extra charge for HAZMAT, an origin/destination charge per Texas trip on rail facilities (extra HAZMAT charge), and a sales tax on the shipping cost of moving of goods by rail.

Rural Rail Transportation Districts (RRTDs)/RailLoans: Currently, RRTDs provide a valuable resource to the state: They help recover abandoned rail lines. However, TxDOT does not have any oversight over these entities, despite the fact that it is the agency in charge of the state's rail system. This could be remedied in statute. In addition, TxDOT should have the authority to provide low-interest loans to these and other rail entities in the state.

Rail Safety Inspection Program: This program was set up to fund rail inspections in Texas- However; there is no mechanism in place to asses a penalty on rail companies who do not pay the annual fee required to fund this program. This could be remedied in statute.

Use of available funds for Rail Projects: Currently TxDOT cannot use Texas Funds on rail projects without waiting for a line-item appropriation from the legislature. Additionally, the department cannot use surplus tolls or concession fees on rail projects. These matters could be remedied in statute.

Planning/Constructing non-TxDOT rail facilities: The Federal Railroad Administration requires Texas to provide a statewide rail plan on all rail facilities. However, statute does not expressly give TxDOT the authority to plan and study for non-TxDOT rail facilities. This should be remedied in statute. In addition, TxDOT should also have the flexibility to finance, construct, maintain, and operate non-TxDOT rail facilities in addition to state-owned facilities.

SAFETY

Exclusive Truck Lanes - The Transportation Code is not clear on the designation of exclusive truck lanes for the Trans-Texas Corridor, unlike the designation of lanes outlined in alternate sections of the Transportation Code. Amend the statute to allow the Commission to designate, on or off the TTC, exclusive truck lanes without a requirement for adjacent lanes for passenger vehicles.

Sobriety Checkpoints – Half of all Texas traffic fatalities are alcohol-related. Sobriety checkpoints have been authorized by Congress, requiring enabling legislation from the state. Sobriety checkpoints been proven to lower the instances of drunk driving in states that have passed enabling legislation. Amend the statute to allow for implementation of sobriety checkpoints by local jurisdictions and Texas DPS.

Automated Camera Enforcement - In the event the AG finds use of automated enforcement illegal in Texas, such legislation would allow law enforcement entities with already stretched resources to target problem areas remotely. Modify the statute to allow local jurisdictions and Texas DPS to utilize automated enforcement technology for traffic offenses. Variable Speed Limits - Allow for use of dynamic message signs to regulate speed limits according to roadway conditions (inclement weather, traffic crashes, and work zones). Allow the TxDOT Executive Director or designee to set variable speed limits based on current conditions.

TOLL ROADS

CDA Enhancements - There are opportunities to enhance the value and the ability of the department to enter into Comprehensive Deveiopment Agreements. There are a few proposed remedies: 1) Repeal or extend the CDA sunset date, currently August 31, 2011. 2) Allow TxDOT to assume the debt of a developer and issue bonds in order to terminate a CDA. 3) Allow CDAs on non-tolled projects. 4) Remove the cap on concession terms- 5) Remove the funding cap on CDAs, currently 40% of federal obligation authority. 6) Deposit concession and surplus toll revenue to the Mobility Fund. 7) Provide an alternative dispute resolution process for CDA disputes. 8) Authorize TxDOT to set up a trust account in Fund 6 or in a private bank for the deposit of concession fees, with interest to go back to the account.

CDA Entity - Establish the institutional capability for a public to participate in the CDA procurement process as a project proponent, it is in the public interest to establish a fair and competetive process among private sector project proponents, local toll authorities, and a TxDOT entity such that the best value proposition moves forward. In any evaluation of a project proposal, TsDOT management has no preference between a project proponent that is a private company, a local toll authority, or a TxDOT entity. The sole consideration in evaluation is the best value.

Various Regional Issues - There are opportunities to coordinate state and regional efforts to improve mobility in Texas by explicitly authorizing certain transactions among the Texas Department of Transportation (TxDOT ), other toll road entities and their private sector partners.

Regional Tollway Authorities and Regional Mobility Authorities - There is no legal mechanism by which a Regional Tollway Authority (RTA) can dissolve, by which a county can withdraw from an RTA, or authorizin an RTA to become or take on the powers of a Regional Mobility authority (RMA) .

State Acquisition of Toll Roads - To ensure that state and regional toil roads are run as efficiently as possible on behalf of the motorists in Texas, state law should ensure that the entity most capable of operating and improving toll roads has the authority to acquire existing systems.

Leasing Highways - State law may not be sufficient to authorize TxDOT to lease or license state highway right of way to an RMA so that the RMA can construct a toll project on that property. Additionally, state law does not currently authorize TxDOT to lease an existing state toll project to a private entity so that entity can operate the project and retain all or a portion of the toil revenue in exchange for lease payments to TxDOT.

Toll Operations and Enforcement - There are opportunities to improve the Texas Department of Transportation's toli operations system through enhancements to current administrative and enforcement activities.

(1) Authorize a driver license suspension for individuals who are convicted of toll violation offenses and fail to pay the outstanding tolls and corresponding administrative fees.

(2) Authorize denial of renewal of vehicle registration for individuals who fail to pay outstanding tolls and corresponding administrative fees. The potential for driver license suspension and/or denial of vehicle registration may not only encourage payment of outstanding tolls and administrative fees, but may serve as deterrent against future violations.

(3) Authorize the department to enter into agreements with local governments or other political subdivisions to allow TxTag® customers to pay for airport parking using their transponders.

(4) Clarify that developers who enter into comprehensive development agreements have the same powers and duties as the department with regard to toll violation enforcement activities. Clarifying the language related to toll violation enforcement procedures will alleviatte the developers concerns regarding their ability to pursue violators to the fullest extent of the law.

(5) Clarify and make more explicit the department's authority to pursue post-billed video tolling. Authorizing video tolling creates an additional tolling tolling method for the department and potential developers and could be a more convenient method of toll payment for some drivers.

© 2006 Texas Department of Transportation: www.dot.state.tx.us