the Texas Workforce Commission v. the Harris County Appraisal District ( 2014 )

ACCEPTED
14-14-00631-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
12/29/2014 5:34:01 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-00631-CV
IN THE FOURTEENTH COURT OF APPEALS, FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS HOUSTON, TEXAS
12/29/2014 5:34:01 PM
CHRISTOPHER A. PRINE
TEXAS WORKFORCE COMMISSION, Clerk
Appellant,
v.
HARRIS COUNTY APPRAISAL DISTRICT,
Appellee.
Appealed from the 55th District Court of Harris County, Texas
District Court Cause No. 2012-34688
Hon. Jeff Shadwick, Presiding
BRIEF OF APPELLANT
TEXAS WORKFORCE COMMISSION
GREG ABBOTT ALISON ANDREWS
Attorney General of Texas Assistant Attorney General
Financial Litigation, Tax, and Charitable
DANIEL T. HODGE Trusts Division
First Assistant Attorney General State Bar No. 24059381
PO Box 12548
DAVID C. MATTAX Austin, Texas 78711
Deputy Attorney General for TEL: (512) 475-1747
Defense Litigation FAX: (512) 478-4013
alison.andrews@texasattorneygeneral.gov
ROBERT O’KEEFE
Chief, Financial Litigation, Tax, and ATTORNEY FOR APPELLANT
Charitable Trusts Division
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant's Counsel Counsel for Additional Parties to
Trial Court Judgment
Alison Andrews
Assistant Attorney General J. C. Loftis
State Bar No. 24059381 P. O. Box 88135
Assistant Attorney General Houston, TX 77288-0135
Office of the Attorney General ATTORNEY FOR VALLEDA CRUMP
Financial Litigation, Tax, and
Charitable Trusts Division Donald DeMoss
P.O. Box 12548 5300 Memorial Drive, 650
Austin, Texas 78711-2548 Houston, TX 77007
Tel: (512) 475-1747 ATTORNEY FOR RONALD HASTIK
Fax: (512) 478-4013
ATTORNEYS FOR APPELLANT Lynne M. Jurek
TEXAS WORKFORCE COMMISSION Albany L. Willis
Kelley, Kronenberg, Gilmartin, Fichtel,
Appellees' Counsel Wander, Bamdas, Eskalyo & Dunbrack
P.A.
Brian J. Begle 1001 McKinney Street, Suite 300
Paula Alexander Houston, TX 77002
Olson & Olson, L.L.P. ATTORNEY FOR LAURA BASS
Wortham Tower, Suite 600
2727 Allen Parkway Unrepresented Additional Parties
Houston, Texas 77019-2133
ATTORNEYS FOR APPELLEE HARRIS Charles E. McKirahan
COUNTY APPRAISAL DISTRICT Dempsey Wells
Michael Marshall
Diane Jobin
Monarchie Clay
Melia J. Wichmann
Phil Ross
Janet Sheffield
Reese Buggs
Gerald Chrisenberry
Cynthia A. Spooner
Forrest Cresswell
ii
TABLE OF CONTENTS
Identity of the Parties ............................................................................................. ii
Index of Authorities .................................................................................................v
Statement of the Case ..............................................................................................1
Issues Presented........................................................................................................1
Statement of Facts ....................................................................................................2
Summary of Argument ............................................................................................7
Argument ..................................................................................................................9
I. The trial court incorrectly treated the HCAD employee question as
dispositive of all issues, and setting aside the TWC decisions on this
basis constituted error by awarding more relief than was requested.
II. The only question before the Court is whether substantial evidence
supports the TWC decisions.
III. The trial court erred in setting aside the TWC decisions ruling the
ARB members were in HCAD’s employment because substantial
evidence supports those decisions.
A. Members of the ARB are in HCAD’s employment under the
general definition in TUCA.
B. TUCA contains no exception to employment for members of
appraisal review boards and the Legislature explicitly rejected a
proposal to add such a provision.
C. Members of the ARB do not qualify for the exception for
members of the judiciary.
IV. The trial court erred in setting aside the TWC decisions on all issues
other than whether the ARB members were in HCAD’s employment
because substantial evidence supports those decisions.
iii
A. The ARB members filed valid claims for benefits.
B. Because the claimants became unemployed through no fault of
their own, TWC properly ruled they were qualified for benefits.
Prayer ......................................................................................................................20
Certificate of Compliance......................................................................................22
Certificate of Service..............................................................................................22
Appendix .................................................................................................................36
Tab 1-House Bill No. 982
Tab 2-Unemployment Insurance Program Letter
Tab 3-S.B. No. 432
Tab 4-House Journal
Tab 5-HB No. 585
Tab 6-Final Judgment
Tab 7-Tex. Lab. Code §212.201
Tab 8-Tex. Lab. Code §212.202
Tab 9-Tex. Lab. Code §201.041
Tab 10-40 Tex. Adm. Code §821.5
iv
INDEX OF AUTHORITIES
CASES
Barnett v. Texas Employment Comm’n,...................................................................18
510 S.W.2d 361, 363 (Tex. Civ. App.—Austin 1974, writ ref’d n.r.e.)
Bradley v. State ex rel. White, ..................................................................................27
990 S.W.2d 245 (Tex. 1999)
City of Houston v. Tippy, ..................................................................................15, 19
991 S.W.2d 330, 334 (Tex. App.—Houston [1st Dist.] 1999, no pet.)
Collingsworth Gen. Hosp. v. Hunnicut, .................................................................14
988 S.W.2d 706, 708 (Tex. 1998)
Critical Health Connection, Inc. v. Tex. Workforce Comm'n,.................................18
338 S.W.3d 758, 766-767 (Tex. App.—Austin 2011, no pet.)
Dotson v. Tex. State Bd. of Med. Examiners,...........................................................14
612 S.W.2d 921, 922 (Tex. 1981).
Dozier v. Tex. Emp. Comm’n, ..................................................................................14
41 S.W.3d 304, 309 (Tex. App.—Houston [14th Dist.] 2001, no pet.)
G&H Towing Co. v. Magee, ......................................................................................9
347 S.W.3d 293, 297 (Tex. 2011)
Elgohary v. Texas Workforce Comm'n, No. 14–09–00108–CV,.............................13
2010 WL 2326126, at *2 (Tex.App.-Houston [14th Dist.] June 10, 2010, no
pet.) (mem. op.)
Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, ...............................14
662 S.W.2d 953, 956 (Tex. 1984).
Harris County Appraisal District v. Texas Workforce Commission
and Jimmy Moreno,....................................................................................................4
No. 2012-25985 (80th Dist. Ct., Harris County, Tex. Mar. 15, 2013.
v
In re Barr,.................................................................................................................28
13 S.W.3d 525, 532 (Tex.Rev.Trib. 1998)
In re Canales, ...........................................................................................................27
113 S.W.3d 56, 67 – 68 (Tex.Rev.Trib. 2003)
McConnell v. Southside ISD, .....................................................................................9
858 S.W.2d 337, 341 (Tex. 1993)
Madisonville Consolidated Ind. Sch. Dist. v. Tex. Emp. Comm’n,..........................29
821 S.W.2d 310, 311 – 312 (Tex.App.—Corpus Christi 1991, writ denied)
McCrory v. Henderson, ..........................................................................................15
431 S.W.3d 140, 143 (Tex.App.–Houston [14 Dist.] 2013, no pet.)
Mercer v. Ross,.........................................................................................................14
701 S.W.2d 830, 831 (Tex. 1986)
Merchant v. State, ..................................................................................................17
379 S.W.2d 924, 925 (Tex. Civ. App—Austin 1964, no writ)
Sledd v. Garrett, .......................................................................................................28
123 S.W.3d 592, (Tex.App.—Houston [14th Dist.] 2003, no pet.)
Spicer v. Tex. Workforce Comm’n, ..........................................................................24
430 S.W.3d 526, 534 n.5 (Tex.App.—Dallas 2014, no pet.)
Tex. Dep't of Pub. Safety v. Alford, ..........................................................................14
209 S.W.3d 101, 103 (Tex. 2006)
Tex. Emp. Comm’n v. Camacho,........................................................................15, 32
394 S.W.2d 35, 37 (Tex.App.—Dallas 1965, no writ)
Texas Statutes
Tex. Lab. Code Ann. §201.011(1) ...........................................................................10
Tex. Lab. Code Ann. §201.012(a) (West 2006) ......................................................32
vi
Tex. Lab. Code Ann. §201.041 (West 2006) ...........................................9, 16, 17, 21
Tex. Lab. Code Ann. §201.046 (West 2006) ...................................................18, 19
Tex. Lab. Code Ann. §201.061-201.078 (West 2006) ............................................16
Tex. Lab. Code Ann. §201.063 (West 2006) .....................................................26, 27
Tex. Lab. Code Ann. §201.081 (West) ....................................................................17
Tex. Lab. Code Ann. §204.101 (West) ...................................................................... 9
Tex. Lab. Code Ann. §207.004 (West 2006) .......................................................9, 16
Tex. Lab. Code Ann. §207.002 (West Supp. 2014) ................................................10
Tex. Lab. Code Ann. §207.003 (West 2006) ...........................................................10
Tex. Lab. Code Ann. §207.021(a) (6) (West Supp. 2014) ......................................10
Tex. Lab. Code Ann. §207.044 (West 2006 & Supp. 2014) .............................12, 32
Tex. Lab. Code Ann. §207.044(b) (West 2006 & Supp. 2014)...............................13
Tex. Lab. Code Ann. §207.045 (West 2006 & Supp. 2014) ...................................12
Tex. Lab. Code Ann. §208.002 (West Supp. 2014) ................................................11
Tex. Lab. Code Ann. §208.002 (a) (West Supp. 2014) .....................................11, 30
Tex. Lab. Code Ann. §212.202 (West 2006 & Supp. 2014) .............................13, 18
Tex. Tax Code Ann. §6.411-6.412 (West) ..............................................................22
STATE RULES
Tex. R. Civ. P. 166a ...................................................................................................9
STATE REGULATIONS
40 Tex. Admin. Code § 821.5 ....................................................................18, 21, 22
vii
40 Tex. Admin. Code § 821.5(1) .............................................................................19
40 Tex. Admin. Code § 821.5(2) .............................................................................19
40 Tex. Admin. Code § 821.5(3) .............................................................................20
40 Tex. Admin. Code § 821.5(4) .............................................................................20
40 Tex. Admin. Code § 821.5(5) .............................................................................20
40 Tex. Admin. Code § 821.5(7) .............................................................................20
40 Tex. Admin. Code § 821.5(9) .............................................................................21
40 Tex. Admin. Code § 821.5(12) ...........................................................................21
40 Tex. Admin. Code § 821.5(14) ...........................................................................21
Federal Statutes
26 U.S.C.A. §§3302 .................................................................................................25
26 U.S.C.A §§3304 ............................................................................................24, 25
26 U.S.C.A §§3309 ............................................................................................24, 25
viii
STATEMENT OF THE CASE
Nature of the Case: Appellee Harris County Appraisal District filed fifteen suits,
each against Appellant Texas Workforce Commission and one former member of
the Harris County Appraisal Review Board, for judicial review of Texas
Workforce Commission decisions. C.R. 53 – 227.
Course of Proceedings: The fifteen suits were consolidated into this cause. C.R.
267. The parties filed cross-motions for summary judgment. C.R. 509 – 618.
Trial Court Disposition: On May 5, 2014, the trial court entered a final judgment
denying Appellant’s motion for summary judgment, granting summary judgment
in favor of Appellee and setting aside the fifteen TWC decisions. C.R. 864 – 866.
Appellant filed a motion for new trial, which the court denied. C.R. 933.
ISSUES PRESENTED
Issue 1: The trial court erred in granting summary judgment on
grounds not raised when it set aside the TWC rulings that the
claimants were qualified for benefits and named the correct last
employer.
Issue 2: The trial court erred in setting aside the TWC decisions ruling
the ARB members were in HCAD’s employment because substantial
evidence supports those decisions.
1
Issue 3: The trial court erred in setting aside the TWC decisions on all
issues other than whether the ARB members were in HCAD’s
employment because substantial evidence supports those decisions.
STATEMENT OF FACTS
The Harris County Appraisal Review Board (“ARB”) decides property tax
disputes and is a critical part of the tax valuation process of the Harris County
Appraisal District (“Appellee” or “HCAD”). C.R. 784. Members of the ARB
obtained their positions by first submitting job applications to HCAD. See C.R. 334.
They were called for job interviews by Peggy Mason, Taxpayer Liaison Officer for
HCAD. See id. Mason conducted interviews for the positions. See id. HCAD then
performed background checks on the prospective members. Id.; C.R. 509 – 606.
Once HCAD hired these members, they were required to participate in
training sessions in the building in which HCAD and the ARB were housed. C.R.
334, 509 – 606. Their job duties included hearing and deciding property tax disputes.
C.R. 335, 509 – 606. HCAD directed the ARB members as to which disputes to hear,
where to hear them, and the date and time the hearings were to be held. See C.R. 335.
HCAD also directed the members as to the procedures to follow in conducting the
hearings and issuing decisions. See id. For example, HCAD directed members as to
what evidence should be considered, how many minutes each side should be given
to present its case, how long each entire hearing should last, and when the decision
2
should be issued. See id.
HCAD designated which member would act as the Chairman of the ARB.
C.R. 509 – 606. HCAD provided rooms for the hearings to be held, which were in
the building where both the ARB and HCAD offices are housed. Id.; C.R. 246.
HCAD also provided clerical and support staff as well as all necessary equipment.
C.R. 247, 509 – 606. The relationship was ongoing for the term for which the
member was hired but either party could terminate the relationship early without
risking financial liability. C.R. 379, 509 – 606. Members were precluded from
participating in outside activities that would conflict with their duties for the ARB.
Id.
HCAD paid ARB members from the HCAD budget at a rate set by HCAD.
C.R. 246, 335, 509 – 606. Members were required to submit weekly timesheets
using HCAD’s timekeeping system and were paid an hourly rate. C.R. 246, 335, 509
– 606. HCAD provided members with direct deposit receipts. C.R. 509 – 606.
HCAD withheld taxes from the members’ paychecks. C.R. 509 – 606. At the end of
the year, HCAD provided members with W-2s, rather than 1099’s, stating members
were employees of HCAD. C.R. 509 – 606. HCAD also reported the wages it paid to
the ARB members to the Texas Workforce Commission (“TWC” or “Appellant”) as
wages paid "in employment." C.R. 653 – 672. Accordingly, the members were
3
awarded wage credits with TWC for the money they received from HCAD. Id.
When no work was available or the member was not eligible to serve
additional terms, several of the members filed claims for unemployment benefits.
C.R. 509 - 606. TWC granted the claimants benefits and HCAD filed administrative
appeals. Id. TWC's decision with respect to each claimant included one or more of
the following rulings:
1) that the claimant was entitled to wage credits based on the money he earned
from HCAD because the services he performed on the ARB were in
HCAD's employment (in this chart below, this category of ruling is labeled
“Employment”);
2) that the claimant named the correct last work or filed a valid claim by
correctly naming his last work (in the chart below, “Last Work”); and
3) that the claimant was qualified to receive benefits and HCAD was not
entitled to protection from chargeback because his discharge from HCAD
was not for misconduct (in the chart below, “Separation”).
C.R. 509 – 607.
After exhausting its administrative remedies, HCAD filed sixteen suits for
judicial review of the TWC decisions. C.R. 53 – 227. In one case, Harris County
Appraisal District v. Texas Workforce Commission and Jimmy Moreno, Cause No.
4
2012-25985, in the 80th District Court of Harris County, the trial court granted
summary judgment in favor of TWC and the ARB member and affirmed the TWC
decision. C.R. 432. HCAD appealed to the First Court of Appeals but then withdrew
its appeal. C.R. 434 – 435.
The remaining fifteen suits were consolidated into this action. C.R. 267. The
chart below shows the claimants included in this matter along with which of the
above three rulings were included in the decision being appealed:
Claimant Employment Last Work Separation
Charles McKirihan (C.R. 509 – 513) X X
Valleda Crump (C.R. 514 – 520) X X X
Ronald Hastik (C.R. 521 – 527) X X X
Dempsey Wells (C.R. 528 – 533) X X X
Michael Marshall (C.R. 534 – 539) X X X
Diane Jobin (C.R. 540 – 545) X X X
Monarchie Clay (C.R. 546 – 552) X X X
Laura Bass (C.R. 553 – 559) X X X
Melia Wichman (C.R. 560 – 565) X X X
Phil Ross (C.R. 566 – 571) X X X
Janet Sheffield (C.R. 572 – 578) X X X
Gerald Chrisenberry (C.R. 579 – 585) X X X
Reese Buggs (C.R. 586 – 590) X
Forrest Cresswell (C.R. 591 – 600) X X
Cynthia Spooner (C.R. 601 – 607) X X
As shown in the above chart, three of the decisions included in this case did
not rule upon whether the claimant was in HCAD's employment but only whether
the claimant filed a valid claim and was qualified to receive benefits based on the
5
reason for the separation. C.R. 509 – 513, 586 – 600. With respect to Cynthia
Spooner, TWC ruled the claimant had properly named another employer as her last
work but that she was entitled to wage credits for the services she performed for
HCAD. C.R. 601 – 607.
HCAD filed a Motion for Summary Judgment asserting only that the ARB
members were not its employees. C.R. 230 - 239. The trial court initially denied
Plaintiff's motion. C.R. 448. After TWC filed its own Motion for Summary
Judgment, HCAD filed an Amended Motion for Summary Judgment that was
identical to the motion the court had already denied. C.R. 465 – 619. HCAD again
moved for summary judgment solely on the grounds that the ARB members were
not its employees and did not address whether the claimants named the correct last
work or whether they should be qualified based on the reasons for their separations
from HCAD. Id.
This time, the trial court granted summary judgment in HCAD’s favor and
denied Appellant's motion. C.R. 864 - 866. Even though HCAD requested summary
judgment solely on the grounds that the ARB members were not its employees, the
court went beyond the relief requested and set aside the TWC decisions entirely. Id.
Appellant filed a Motion for New Trial. C.R. 867 - 919. At the hearing on
Appellant's Motion for New Trial, HCAD acknowledged that it was not disputing
6
whether the members were qualified for benefits based on their separations from
HCAD. R.R. 12:22 - 13:5. The court nonetheless denied Appellant's motion. C.R.
933. This appeal followed.
SUMMARY OF ARGUMENT
The trial court erred by granting summary judgment on grounds not
presented in HCAD’s motion. HCAD’s Amended Motion for Summary Judgment
asserts only that the ARB members were not HCAD’s employees. Whether the
ARB members were in HCAD’s “employment” under the Texas Unemployment
Compensation Act (“TUCA”) determines only whether the members are entitled to
wage credits based on the money they earned from HCAD. It is not dispositive of
any other issues contained in the decisions, including whether the members filed
valid claims or should be qualified for benefits based on the reasons for their
separations from HCAD. The trial court nonetheless set aside the TWC decisions
in their entirety. By doing so, the court disqualified the claimants from receiving
any benefits whatsoever, even those based on other employment, without any
support for such a ruling. Because the trial court granted summary judgment on
grounds not requested in HCAD’s Amended Motion for Summary Judgment, the
order setting aside the TWC rulings regarding the claimants’ last work and
qualification for benefits should be reversed.
7
Furthermore, the trial court erred in denying TWC’s motion for summary
judgment and in granting Appellant’s motion with respect to all the rulings
contained in the decisions because all the rulings are supported by substantial
evidence. A case for judicial review of a TWC unemployment benefits decision
under TUCA contains only a question of law: whether substantial evidence
supports the agency decision. The party challenging the decision bears the heavy
burden of proving the decision is not supported by substantial evidence or is
unreasonable, arbitrary or capricious. TWC properly ruled that the members were
in HCAD’s employment because their performance of their duties was not free
from HCAD’s direction and control and no exception to the general definition of
employment was applicable. TWC’s Motion for Summary Judgment showed
substantial evidence supports those decisions and HCAD’s motion did not destroy
that evidence or show the decisions to be unreasonable or arbitrary and capricious.
TWC’s Motion for Summary Judgment also showed substantial evidence supports
all other rulings contained in the TWC decisions, and HCAD’s motion contained
no evidence or arguments to the contrary. Accordingly, summary judgment should
be granted in Appellant’s favor and the TWC decisions should be affirmed in their
entirety.
8
ARGUMENT
I. The trial court incorrectly treated the HCAD employee question as
dispositive of all issues, and setting aside the TWC decisions on this basis
constituted error by awarding more relief than was requested.
A motion for summary judgment must state the specific grounds upon which
it is based. Tex. R. Civ. P. 166a. The motion “must stand or fall on the grounds
expressly presented in the motion.” McConnell v. Southside ISD, 858 S.W.2d 337,
341 (Tex. 1993). As a general rule, granting summary judgment on a claim not
addressed in the motion is reversible error. G&H Towing Co. v. Magee, 347
S.W.3d 293, 297 (Tex. 2011).
HCAD moved for summary judgment solely on the grounds that the ARB
members were not its employees. See C.R. 608 – 619. The Texas Unemployment
Compensation Act (“TUCA”) uses the term “employment” to describe the
relationship between a worker and an employer when the worker performs services
under the direction and control of the employer. Tex. Lab. Code Ann. § 201.041
(West 2006). If the worker is paid wages for services performed in employment,
rather than as an independent contractor, the worker will receive “benefit wage
credits” for those wages, Tex. Lab. Code § 207.004, and the employer will be
required to contribute to the unemployment compensation trust fund based on
those wages, Tex. Lab. Code § 204.101. To be eligible for benefits, a claimant
9
must have earned a sufficient number of wage credits in her base period, which is
approximately the year-and-a-half prior to filing her initial claim, from all the
entities for which she worked combined. Tex. Lab. Code Ann. § 207.021(a)(6)
(West Supp. 2014) 1; see also Tex. Lab. Code Ann. § 201.011(1) (West 2006 &
Supp. 2014) (defining “base period”). The number of wage credits a claimant has
determines her weekly benefit amount. Tex. Lab. Code Ann. § 207.002, (West
Supp. 2014); Tex. Lab. Code Ann. § 207.003 (West 2006).
Because TWC determined the ARB members performed services in
HCAD’s employment, they were awarded benefit wage credits for their earnings
from HCAD. All the decisions included in this case except those concerning
Charles McKirihan, Reese Buggs and Forrest Cresswell include rulings affirming
the award of wage credits. C.R. 509 – 607. By asserting that the ARB members
were not its employees, HCAD placed these rulings at issue.
This assertion does not, however, provide any grounds for reversal of any of
the other rulings contained in the decisions. Whether the ARB members were
HCAD’s employees does not affect whether the members named the correct last
1
This section was amended in 2013. At the time TWC issued these decisions, the section
pertaining to eligibility based on wage credits was 207.021(a)(5), which was identical to the
current 207.021(a)(6).
10
work or are qualified for benefits. These are separate determinations made without
regard to employment status.
By ruling that the claimants filed valid claims or named the correct last
work, the decisions state nothing more than that HCAD was the last entity for
which the claimants performed services prior to filing their initial claims. See Tex.
Lab. Code Ann. § 208.002 (West Supp. 2014). TUCA defines “last work” and
“person for whom the claimant last worked” as:
When used in connection with an initial claim, “last
work” and “person for whom the claimant last worked”
refer to:
(1) the last person for whom the claimant actually
worked, if the claimant worked for that person for at
least 30 hours during a week; or
(2) the employer, as defined by Subchapter C, Chapter
201, or by the unemployment law of any other state,
for whom the claimant last worked.
Tex. Lab. Code Ann. § 208.002(a) (West Supp. 2014). This definition does not
require that the last work be performed in employment. Id. If the last work the
claimant performed was as an independent contractor, the entity for which he
performed those services would still be the correct last work. All the decisions
included in this case include rulings that the claimant properly named his last
work. See C.R. 509 – 607. In its Amended Motion for Summary Judgment, HCAD
made no assertions whatsoever regarding this issue. See generally C.R. 608 – 619.
11
All the decisions except those pertaining to Reese Buggs and Cynthia
Spooner also contained rulings that the claimants were not disqualified from
receiving benefits because they were laid off from their last work and not
discharged for misconduct. C.R. 509 – 607. Whether a claimant is qualified for
benefits is based solely on the reason the claimant was separated from his last work
without regard to whether the last work was performed in employment. See Tex.
Lab. Code Ann. § 207.044 (West 2006 & Supp. 2014) (“An individual is
disqualified for benefits if the individual was discharged for misconduct connected
with the individuals last work); Tex. Lab. Code Ann. § 207.045 (West 2006 &
Supp. 2014) (“An individual is disqualified for benefits if the individual left the
individual’s last work voluntarily without good cause connected with the
individual’s work”). Once a claimant is ruled to be disqualified, that
disqualification remains in place for the entire remainder of the claimant’s benefit
year unless the claimant returns to employment and works for six weeks or earns
six times his weekly benefit amount. Id. In its Amended Motion for Summary
Judgment, HCAD made no assertions whatsoever regarding the reason for the
claimants’ separations from their last work. The court nonetheless reversed these
rulings, leaving the claimants disqualified for the entire benefit year unless they
12
were able to work enough hours or earn sufficient wages to requalify. See Tex.
Lab. Code Ann. §207.044(b) (West 2006 & Supp. 2014).
If the Court were to determine that the ARB members were not in HCAD’s
employment under TUCA without ruling on any of the other issues not raised by
HCAD, the wage credits the members received from HCAD would be deleted and
their benefit amounts would be recalculated accordingly. But, as long as each
member still had sufficient wage credits from other sources and was qualified
based on the reason for his separation from his last work, he could still receive
some benefits. However, by setting aside the TWC decisions entirely, the trial
court invalidated the members’ entire claims and ruled them disqualified for the
entire benefit year. Such relief goes beyond the grounds upon which HCAD moved
for summary judgment and therefore should be reversed.
II. The only question before the Court is whether substantial evidence
supports the TWC decisions.
Additionally, Appellant is entitled to summary judgment on all rulings
contained in the decisions because the rulings are reasonable and are supported by
substantial evidence. Judicial review of TWC unemployment benefits decisions is
by trial de novo with substantial evidence review. Tex. Lab. Code Ann. § 212.202
(West 2006 & Supp. 2014); Elgohary v. Texas Workforce Comm'n, No.
14–09–00108–CV, 2010 WL 2326126, at *2 (Tex.App.—Houston [14th Dist.] June
13
10, 2010, no pet.) (mem. op.); Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986).
Under this standard, TWC’s decisions are presumed to be valid, which places the
burden on the party challenging the decision. Collingsworth Gen. Hosp. v. Hunnicut,
988 S.W.2d 706, 708 (Tex. 1998). While the trial court will hear and consider
evidence to determine whether reasonable support for the agency’s order exists, the
agency remains the primary fact-finding body. Firemen’s & Policemen’s Civil Serv.
Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984). Whether substantial
evidence supports an administrative decision is strictly a question of law. Tex. Dep't
of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006).
When a court examines whether there is substantial evidence to support an
agency’s decision, it determines whether reasonable minds could have reached the
same conclusion the agency reached. Dotson v. Tex. State Bd. of Med. Examiners,
612 S.W.2d 921, 922 (Tex. 1981). TWC has the discretion to make credibility
determinations and to attach whatever weight it considers appropriate to various
pieces of evidence. Dozier v. Tex. Emp. Comm’n, 41 S.W.3d 304, 309 (Tex.
App.—Houston [14th Dist.] 2001, no pet.). A court may not set aside a TWC
decision merely because there was conflicting or disputed testimony or because the
court would have reached a different conclusion if it were the primary factfinder.
Mercer, 701 S.W.2d at 931.
14
Because substantial evidence is more than a mere scintilla but need not reach
a preponderance, the evidence may preponderate against the decision of the agency
but still amount to substantial evidence. City of Houston v. Tippy, 991 S.W.2d 330,
334 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The Court may not set aside the
agency’s decision simply because the Court would have reached a different result
but only if it finds that the decision was made without regard to the law or the facts
and therefore was unreasonable, arbitrary, or capricious. McCrory v. Henderson,
431 S.W.3d 140, 143 (Tex.App.–Houston [14 Dist.] 2013, no pet.); Mercer, 701
S.W.2d at 931 (Tex. 1986).
HCAD had the burden to not only show that another decision could also have
been made but to completely destroy the evidence in support of the TWC decisions.
See Tex. Emp. Comm’n v. Camacho, 394 S.W.2d 35, 37 (Tex.App.—Dallas 1965,
no writ) (“[U]nder the substantial evidence rule our only purpose in examining [the
plaintiff’s evidence] is to determine whether it completely destroys the evidence of
misconduct.”). HCAD failed to carry this burden.
III. The trial court erred in setting aside the TWC decisions ruling the ARB
members were in HCAD’s employment because substantial evidence
supports those decisions.
15
An individual is entitled to benefit wage credits for all wages earned in
employment. Tex. Lab. Code Ann. § 207.004 (West 2006). The Texas
Unemployment Compensation Act (“TUCA”) defines “employment” as:
[A] service, including service in interstate commerce,
performed by an individual for wages or under an express or
implied contract of hire, unless it is shown to the satisfaction of
the commission that the individual’s performance of the service
has been and will continue to be free from control or direction
under the contract and in fact.
Tex. Lab. Code Ann. § 201.041 (West 2006). Chapter 201 also provides specific
exceptions from “employment” for work performed in various industries. See Tex.
Lab. Code Ann. §§ 201.061 – 201.078 (West 2006) (exempting religious service,
service by a relative, certain service on a fishing vessel, etc., from employment).
The claimants were paid by HCAD for the services they performed on the ARB,
those services were performed under HCAD’s direction and control and none of
the exceptions apply. Accordingly, TWC ruled the members were entitled to wage
credits for the wages they received. C.R. 509 – 607. Because such rulings require
HCAD to pay additional contributions to the unemployment compensation trust
fund, HCAD brought this suit seeking reversal of the TWC decisions that the
members were its employees. However, these decisions are supported by
substantial evidence and therefore should be affirmed.
16
A. Members of the ARB are in HCAD’s employment under the general
definition in TUCA.
TUCA defines employment as a service performed for wages unless it is
shown to be free from direction and control. Tex. Lab. Code § 201.041. It defines
wages as “all remuneration for personal services.” Tex. Lab. Code § 201.081.
Thus, under the plain language of the statute, payment for services to a worker
creates a presumption that the worker is an employee of the remunerating
employer. The burden under the law then shifts to the employer to establish that
the worker is free from control or direction in the performance of his or her
services. Merchant v. State, 379 S.W.2d 924, 925 (Tex. Civ. App—Austin 1964,
no writ).
The evidence shows that HCAD paid members of the ARB for the services
they provided. C.R. 246, 335, 509 – 606. HCAD filed wage reports with the TWC
in which it listed members of the ARB as its employees. CR. 653 – 672. HCAD
withheld taxes and filed W-2’s with the I.R.S. as though the members were its
employees. C.R. 509 – 606. The members were paid from the HCAD budget. Id.
To rebut the presumption of employment, then, HCAD had to establish that
the members were free from its control. TWC utilizes twenty factors to analyze
whether the employer had control over the worker’s performance of his duties
17
either in contract or in fact. 2 40 T.A.C. 821.5 (2007); Barnett v. Texas
Employment Comm’n, 510 S.W.2d 361, 363 (Tex. Civ. App.—Austin 1974, writ
ref’d n.r.e.). Not all factors may apply in a given relationship and the weight
assigned to each factor may vary depending on the circumstances. 40 T.A.C. §
821.5. Even if the employer did not actually exercise control, an employment
relationship exists as long as the employer reserved the right to do so. See 40
T.A.C. § 821.5. Moreover, the employer can delegate the authority to control the
work to other individuals or employers. Tex. Lab. Code Ann. § 201.046 (West
2006); Critical Health Connection, Inc. v. Tex. Workforce Comm'n, 338 S.W.3d
758, 766-767 (Tex. App.—Austin 2011, no pet.).
The Court reviews TWC’s decision under the substantial evidence standard
of review. Tex. Lab. Code Ann. § 212.202 (West 2006 & Supp. 2014). Thus, as
long as there is more than a mere scintilla of evidence that the members were
subject to some control, or evidence that HCAD had the right to control the
2
A full copy of the twenty-factor test laid out in the Administrative Code is included in
Appendix A. In short, the factors that tend to indicate employment are: 1) instructions; 2)
training; 3) integration of the worker’s services into the business; 4) requirement that services be
rendered personally; 5) the employer hires and pays any helpers; 6) continuing relationship; 7)
employer sets hours of work; 8) full time work required; 9) employer determines the location;
10) employer sets the order or sequence of work; 11) oral or written reports required; 12)
payment by the hour, week or month; 13) payment of business and travel expenses; 14)
furnishing tools and equipment; 15) the employee has little or no investment in the business; 16)
the employee may not realize a profit or loss; 17) the employee may only work for one firm at a
time; 18) an employee does not make services available to the public; 19) the employer has the
right to discharge without liability; and 20) the employee may quit without liability.
18
members, the TWC decision should be upheld. See Tippy, 991 S.W.2d at 334.
There is substantial evidence to support TWC’s rulings that HCAD controlled the
members’ work. Indicia of the control exercised by HCAD include the following:
• HCAD directed the ARB members as to which disputes to hear,
where to hear them, and the date and time the hearings were to be held. See
C.R. 335. HCAD also directed the members as to the procedures to follow in
conducting the hearings and issuing decisions, including what evidence
should be considered, how many minutes each side should be given to
present its case, how long each entire hearing should last, and when the
decision should be issued. See id. Instructions such as these are a strong
indication of control. See 40 T.A.C. § 821.5(1). Even when these
instructions were given by the Chairman, the Chairman was selected by
HCAD, C.R. 509 – 606, and HCAD’s delegation of control to a specific
individual does not alter the analysis, see Tex. Lab. Code § 201.046.
• The members were required to participate in training sessions
held in the building that housed HCAD and the ARB. C.R. 335, 509 – 606.
Training is another factor that strongly shows control by the employer. See
40 T.A.C. § 821.5(2).
19
• HCAD has admitted that the ARB is a critical part of its tax
valuation process. C.R. 784. The integration of the worker’s services into the
employer’s business weighs in favor of an employment relationship. See 40
T.A.C. § 821.5(3).
• When members applied for positions as ARB members, an
HCAD employee scheduled and conducted the job interviews. See C.R. 334.
HCAD also conducted background checks. C.R. 509 – 606. This
demonstrates a significant amount of control by HCAD over who may serve
as an ARB member and indicates that that the services had to be rendered by
the individual personally—rather than delegated to others—another factor
favoring employment. See 40 T.A.C. § 821.5(4).
• HCAD supplied clerical and support staff and legal counsel
when needed. C.R. 379, 509 – 606. Independent contractors, on the other
hand, usually hire, supervise and pay their own helpers. 40 T.A.C. §
821.5(5).
• HCAD set the dates and times of the hearings. C.R. 335.
Independent contractors are generally free to set their own hours. 40 T.A.C.
§ 821.5(7).
20
• Hearings were held in rooms provided by HCAD. C.R. 509 –
606. Independent contractors can generally perform the work where they
choose. 40 T.A.C. § 821.5(9).
• ARB members were paid an hourly rate rather than per job,
C.R. 335, 509 – 606, a factor tending to show employment, 40 T.A.C. §
821.5(12).
• HCAD furnished all necessary equipment, C.R. 247, 509 – 606,
as tends to occur in an employment relationship, 40 T.A.C. § 821.5(14).
These are only some of the ways in which HCAD exercised direction and control
over the ARB members. Of the remaining factors in TWC’s test, none would tend
to show the ARB members were independent contractors. See 40 T.A.C. § 821.5.
In fact, HCAD has itself admitted in another case that the ARB members
were not truly independent contractors. See C.R. 786 (“Application of the TWC’s
20-factor test to the actual services of the ARB members shows that they are not
employees, and under some factors, also are not independent contractors.”). While
HCAD may believe the workers exist in some realm between employees and
independent contractors, no such position exists: either the services are performed
free from the employer’s direction and control or they are not. See Tex. Lab. Code
§ 201.041. Here, they are not.
21
Based on these factors, substantial evidence supports the TWC decisions that
members of the ARB were in HCAD’s employment as that term is defined in
TUCA. HCAD did not provide sufficient evidence to carry its burden of proving
otherwise. In fact, the only argument HCAD made to show it did not exert or
reserve the right to exert direction and control over the members was that the Tax
Code prohibits HCAD employees from serving on the ARB and makes it a
criminal offense for HCAD to influence an ARB decision. C.R. 608 – 619; see
Tex. Tax Code §§ 6.411 – 6.412. At best, this shows one area in which HCAD
does not have the right to control the ARB and is no different from any
employment relationship in which an employee is prohibited from working on
matters in which the employee has a conflict of interest. The test of employment
under TUCA is a fact-based analysis that involves weighing all the factors. 40
T.A.C. § 821.5. Simply showing one area in which HCAD did not exert control
over the members is not sufficient to negate the many ways in which it did.
Instead of addressing the many factors showing direction and control,
HCAD primarily argued that the members were not in its employment because
they fell into an exception to employment under the law. C.R. 230 – 239. However,
no such exception applies.
22
B. TUCA contains no exception to employment for members of appraisal
review boards and the Legislature explicitly rejected a proposal to add
such a provision.
TUCA contains no exception to the definition of employment for members
of appraisal review boards. In fact, during the last legislative session, the
Legislature looked at the very question currently before this Court and rejected a
change to TUCA that would exempt ARB members from receiving unemployment
benefits based on services provided to the ARB. Senator Dan Patrick and
Representative Gary Elkins proposed identical amendments to the Labor Code that
would have enacted the following as Section 207.0435:
Benefits are not payable to an individual based on services
performed by the individual as a member of the appraisal
review board of an appraisal district established under Section
6.41, Tax Code.
Tex. H.B. 982, 83rd Leg., R.S. (2013); Tex. S.B. 432, 83rd Leg., R.S. (2013). The
bills also stated that the change would apply only to a claim for benefits filed with
TWC on or after the effective date of the new statute. Id. Neither bill made it out of
its respective committee.
Having failed to amend TUCA, HCAD advocated for an amendment to the
Property Tax Code that would have exempted ARB members from receiving
unemployment benefits by declaring them to be independent contractors. Tex. H.B.
585, 83rd Leg., R.S. (2013). In laying out the amendment on the House floor,
23
Representative Villarreal said the intent was to correct what he viewed as a
problem: certain ARB members were claiming to be employees and then claiming
unemployment benefits when they left the ARB. 3
However, HB 585 was then referred to the Senate, and when the Senate
Finance Subcommittee on Fiscal Matters considered the bill on May 15, 2013, the
subcommittee proposed a substitute bill with the ARB exemption removed.
Senator Eltife said the exemption was removed because it would conflict with
federal law. 4 Although Michael Gary, counsel for HCAD, testified that he was
concerned about the removal of the exemption, the substitute bill was enacted
without it.
Indeed, the Federal Unemployment Tax Act (“FUTA”) sets out numerous
requirements with which a state law must conform in order for the state to receive
funding for the administration of its unemployment compensation trust fund. See
26 U.S.C.A. §§ 3304 – 3309. Each year, the U.S. Secretary of Labor surveys a
state’s unemployment compensation act to ensure compliance with federal law.
Spicer v. Tex. Workforce Comm’n, 430 S.W.3d 526, 534 n.5 (Tex.App.—Dallas
2014, no pet.). To maintain certification for federal funding, the state program
3
A video recording of the debate can be accessed at:
http://www.house.state.tx.us/video-audio/chamber/83/ under the archived video dated 5/02/2013.
HB 585 begins approximately at time index 2:53:25 and goes for about 4 minutes to 2:57:00.
4
This video recording can be accessed at: http://www.senate.state.tx.us/avarchive/. HB 585
begins approximately at time index 12:35 and goes for about 16 minutes to 28:42.
24
must cover certain broad categories of employment as provided in 26 U.S.C.
sections 3304 and 3309. Id. While states may broaden the coverage to include
more categories of individuals, they may not provide less coverage than that
mandated. Id. Section 3309 sets out the exceptions to employment that may apply
with regard to taxed governmental employers such as HCAD. It does not include
an exception for members of appraisal review boards. 26 U.S.C.A. § 3309. If the
U.S. Secretary of Labor determines that a state unemployment compensation act
does not conform to federal law, the state’s eligibility to receive federal funding
may be endangered. In fiscal year 2012, TWC spent $124 million in federal funds
to administer TUCA. Tex. Workforce Comm’n, Self-Evaluation Report to the Tex.
Sunset Advisory Comm’n, Aug, 2013, at 41, available at
https://www.sunset.texas.gov/public/uploads/files/reports/
Workforce%20Commission%20SER%202013%2084%20Leg.pdf. In addition to
the state losing those funds if the statute were found to be out of compliance with
federal law, Texas employers would also no longer be eligible for large federal tax
credits and their effective tax rates would increase from 0.6 percent to 6.0 percent.
See 26 U.S.C.A. § 3302.
HCAD is now asking the Court to enact the same legislation the Texas
Legislature expressly rejected. Just as the U.S. Department of Labor looks at newly
25
enacted statutes to ensure compliance, the federal agency also reviews state court
decisions to see whether the state is interpreting and applying its unemployment
compensation laws in conformity with federal law. See Unemployment Insurance
Program Letter 27-07 Attach. II § 1(d) (Aug. 10, 2007) ("All decisions and orders
issued by state courts involving UC benefits and taxes must be submitted for
review [to the U.S. Department of Labor] to ensure that interpretation of state law
does not conflict with Federal law."). A court ruling that fails to comply with
FUTA could have the same result as a noncomplying statute.
C. Members of the ARB do not qualify for the exception for
members of the judiciary.
After the Texas Legislature failed to enact a statute excepting members of
the ARB from coverage under TUCA, HCAD asserted in its Amended Motion for
Summary Judgment that ARB members are subject to the exception for “members
of the judiciary.” C.R. 230 – 239. Section 201.063 does provide such an exception,
stating:
a) In this subtitle, “employment” does not include:
(1) service in the employ of a political subdivision or of
an instrumentality of a political subdivision that is wholly
owned by one or more political subdivisions:
(A) as an elected official;
(B) as a member of a legislative body;
(C) as a member of the judiciary; . . .
26
Tex. Lab. Code Ann. § 201.063 (West 2006). No case has previously interpreted
this section as it applies to “members of the judiciary.” However, from its own
language, this section as a whole appears to apply only to legislators, judges and
other elected officials in the strictest sense, whose performance can never truly be
under the direction and control of any entity because they are in the apex positions
of decision-making for the governmental body. They need not commit misconduct
to be replaced at the end of their terms by the voting public but cannot be removed
before such time except in extreme circumstances. See In re Canales, 113 S.W.3d
56, 67 – 68 (Tex.Rev.Trib. 2003) (“[R]emoving a member of the judiciary and
depriving the electorate of its choice of judge is a serious matter . . .”). These
positions differ in those respects from those generally covered by TUCA so an
exception is necessary.
HCAD contends this exception applies to members of the ARB because they
perform some judicial-like functions. Had the Legislature intended for the
exception to apply so widely, it could have used a broader term such as “judicial
officers”, “quasi-judicial officers” or “officials who perform judicial functions”.
The term it chose instead does not include all agency personnel who decide
disputes. See Bradley v. State ex rel. White, 990 S.W.2d 245 (Tex. 1999) (rule
prohibiting judge from testifying “does not only apply to members of the judiciary,
27
but also to those performing judicial functions . . .”); In re Barr, 13 S.W.3d 525,
532 (Tex.Rev.Trib. 1998) (“In a civilized society, members of the judiciary are
significant public figures whose authority necessarily reaches all points within
their respective jurisdiction[s], if not beyond.”).
In support of its position that ARB members are “members of the judiciary”,
HCAD relies primarily on this Court’s opinion in Sledd v. Garrett, 123 S.W.3d
592, (Tex.App.—Houston [14th Dist.] 2003, no pet.), which ruled the quasi-judicial
functions performed by ARB members were protected by judicial immunity. Id. at
596. “Although the Panel Members are not judges, the doctrine of judicial
immunity has been applied to quasi-judicial officials in certain circumstances.” Id.
at 594. The fact that ARB members are entitled to one of the protections that
judges receive, however, does not mean they are considered members of the
judiciary in all respects. This is what makes the position quasi-judicial. To
determine whether a specific provision applies, the Court must look at how the
statute or doctrine relates to the functions of the ARB.
Explaining the application of judicial immunity to ARB members, this Court
stated in Sledd, “Judicial immunity furthers the public interest in the administration
of justice by allowing judicial officers to be free to act on their own convictions,
without fear of personal liability.” Id. The primary concern of TUCA, on the other
28
hand, is very different. “The unemployment compensation law is remedial in
nature and should be construed liberally to give effect to its beneficent purposes,”
which is “to provide compensation to those who become unemployed through no
fault of their own.” Madisonville Consolidated Ind. Sch. Dist. v. Tex. Emp.
Comm’n, 821 S.W.2d 310, 311 – 312 (Tex.App.—Corpus Christi 1991, writ
denied). HCAD offers no authority to support the proposition that the extension of
exception from receipt of unemployment benefits to quasi-judicial officers would
render them elected officials, members of a legislative body, or members of the
judiciary for the purposes of TUCA.
IV. The trial court erred in setting aside the TWC decisions on all issues
other than whether the ARB members were in HCAD’s employment
because substantial evidence supports those decisions.
When a claimant files a claim for benefits, he names as his last work
whichever person or entity for which he last performed any services prior to filing
his initial claim, regardless of whether that work was performed in employment or
as an independent contractor. In addition to ruling that the ARB members were in
HCAD’s employment, the TWC decisions also ruled the ARB members named the
correct last employer and were qualified to receive benefits because they were
discharged from the last work for reasons other than misconduct connected with
the work. HCAD had the burden of proving these decisions were not supported by
29
substantial evidence but failed to provide any evidence or arguments whatsoever
regarding these rulings. TWC’s Motion for Summary Judgment shows substantial
evidence supports these rulings. Accordingly, summary judgment should be
entered in favor of Defendants.
A. The ARB members filed valid claims for benefits.
All of the decisions in this case ruled the claimants named the correct last
work, either directly or by stating the claimant filed a valid claim. C.R. 509 – 607.
TUCA states:
When used in connection with an initial claim, “last
work” and “person for whom the claimant last worked”
refer to:
(1) the last person for whom the claimant actually
worked, if the claimant worked for that person for at
least 30 hours during a week; or
(2) the employer, as defined by Subchapter C, Chapter
201, or by the unemployment law of any other state,
for whom the claimant last worked.
Tex. Lab. Code Ann. § 208.002(a) (West Supp. 2014). The claimant’s last work,
then, is simply whichever person or entity for which the claimant last performed
work prior to filing his initial claim regardless of whether that work was performed
in employment or as an independent contractor.
The evidence shows that the claimants correctly named their last work when
filing their initial claims. C.R. 509 – 606. All but one of the claimants last worked
30
for HCAD, and the claimant who worked elsewhere before filing her claim,
Cynthia Spooner, correctly named the other entity as her last work. C.R. 601 – 606.
Therefore, TWC decided they all filed valid claims. Id. HCAD had the burden of
proving these decisions were unreasonable or not supported by substantial
evidence. To carry this burden, HCAD would have had to show that each claimant
worked for another employer after leaving the ARB and before filing his initial
claim. However, HCAD failed to present any evidence or arguments on the issue
whatsoever. See id. Because HCAD failed to carry its burden, the TWC decisions
on the members’ last work and validity of their claims should be affirmed.
B. Because the claimants became unemployed through no fault of their
own, TWC properly ruled they were qualified for benefits.
Each of the decision included in this case except those regarding claimants
Reese Buggs and Cynthia Spooner also ruled that the claimant was not disqualified
from receiving benefits because his discharge from HCAD was not for misconduct
connected with the work. C.R. 509 – 607. TUCA provides, in pertinent part:
a) An individual is disqualified for benefits if the individual
was discharged for misconduct connected with the individual’s
last work.
b) Disqualification under this section continues until the
individual has returned to employment and:
(1) worked for six weeks; or
(2) earned wages equal to six times the individual’s
benefit amount.
31
Tex. Lab. Code Ann. § 207.044 (West 2006 & Supp. 2014). TUCA then defines
misconduct as:
[M]ismanagement of a position of employment by action or
inaction, neglect that jeopardizes the life of property of another
intentional wrongdoing or malfeasance, intentional violation of
a law, or violation of a policy or rule adopted to ensure the
orderly work and the safety of employees.
Tex. Lab. Code Ann. § 201.012(a) (West 2006).
The claimants all became unemployed when no work was available on the
ARB or they had served the maximum number of terms allowed by statute. C.R.
509 – 607. Because they were laid off and not discharged for misconduct
connected with the work, the claimants are qualified to receive benefits. HCAD
made no allegations whatsoever that the claimants committed misconduct. A lack
of available work is precisely the type of situation for which the unemployment
compensation trust fund was established. See Madisonville Consolidated Ind. Sch.
Dist., 821 S.W.2d at 311 – 312.
HCAD had the burden of not only proving the members were discharged for
misconduct but of destroying any evidence to the contrary presented by the
claimants and TWC. Camacho, 394 S.W.2d at 37. However, HCAD presented no
evidence whatsoever on this subject. Because the TWC decisions ruling the
members were qualified for benefits are supported by substantial evidence and
32
HCAD entirely failed to carry its burden of proving otherwise, the TWC decisions
should be affirmed.
PRAYER
The trial court’s order should be reversed because it grants summary
judgment and sets aside the TWC decisions on grounds HCAD did not raise. In
addition, the TWC decisions should be upheld as a whole because they are
reasonable and supported by substantial evidence. Therefore, Appellant Texas
Workforce Commissions asks this Court reverse the trial court’s order in its
entirety and render judgment in favor of Appellant, or, in the alternative, that this
Court reverse the trial court’s ruling that the Appraisal Review Board members are
not employees of the Harris County Appraisal District and remand the case for
further proceedings on all other issues.
Respectfully submitted,
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID C. MATTAX
Deputy Attorney General for Defense Litigation
33
ROBERT O’KEEFE
Division Chief,
Financial Litigation, Tax, and Charitable Trusts
Division
/s/ Alison Andrews
ALISON ANDREWS
Assistant Attorney General
Bar No. 24059381
Financial Litigation, Tax, and Charitable
Trusts Division
P.O. Box 12548
Austin, Texas 78711-2548
(512) 475-1747
(512) 478-4013 - FAX
ATTORNEYS FOR APPELLANT
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than
14-point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
7,113 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1), as
counted by the computer program used to prepare this document.
/s/ Alison Andrews
ALISON ANDREWS
Assistant Attorney General
CERTIFICATE OF SERVICE
Pursuant to the Texas Rules of Appellate Procedure, the undersigned hereby
certifies that on the 29th day of December, 2014, a true and correct copy of the
34
Brief of Appellant Texas Workforce Commission was mailed certified mail, return
receipt requested to Attorney for HCAD.
/s/ Alison Andrews
ALISON ANDREWS
Assistant Attorney General
35
APPENDIX
36
TAB 1
By:AAElkins H.B.ANo.A982
A BILL TO BE ENTITLED
1 AN ACT
2 relating to the eligibility for unemployment compensation benefits
3 of individuals who serve on the appraisal review board of an
4 appraisal district.
5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
6 SECTIONA1.AASubchapter C, Chapter 207, Labor Code, is
7 amended by adding Section 207.0435 to read as follows:
8 Sec.A207.0435.AAAPPRAISAL REVIEW BOARD MEMBERS. Benefits
9 are not payable to an individual based on services performed by the
10 individual as a member of the appraisal review board of an appraisal
11 district established under Section 6.41, Tax Code.
12 SECTIONA2.AAThe change in law made by this Act applies only
13 to a claim for unemployment compensation benefits filed with the
14 Texas Workforce Commission on or after the effective date of this
15 Act. A claim filed before the effective date of this Act is
16 governed by the law in effect on the date the claim was filed, and
17 the former law is continued in effect for that purpose.
18 SECTIONA3.AAThis Act takes effect September 1, 2013.
83R3394 KSD-F 1
TAB 2
TAB 3
By:AAPatrick S.B.ANo.A432
A BILL TO BE ENTITLED
1 AN ACT
2 relating to the eligibility for unemployment compensation benefits
3 of individuals who serve on the appraisal review board of an
4 appraisal district.
5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
6 SECTIONA1.AASubchapter C, Chapter 207, Labor Code, is
7 amended by adding Section 207.0435 to read as follows:
8 Sec.A207.0435.AAAPPRAISAL REVIEW BOARD MEMBERS. Benefits
9 are not payable to an individual based on services performed by the
10 individual as a member of the appraisal review board of an appraisal
11 district established under Section 6.41, Tax Code.
12 SECTIONA2.AAThe change in law made by this Act applies only
13 to a claim for unemployment compensation benefits filed with the
14 Texas Workforce Commission on or after the effective date of this
15 Act. A claim filed before the effective date of this Act is
16 governed by the law in effect on the date the claim was filed, and
17 the former law is continued in effect for that purpose.
18 SECTIONA3.AAThis Act takes effect September 1, 2013.
83R3394 KSD-F 1
TAB 4
HOUSE JOURNAL
EIGHTY-THIRD LEGISLATURE, REGULAR SESSION
PROCEEDINGS
SIXTY-THIRD DAY — THURSDAY, MAY 2, 2013
The house met at 2 p.m. and was called to order by the speaker pro tempore.
The roll of the house was called and a quorum was announced present
(Recordi436).
Present — Mr. Speaker; Allen; Alonzo; Alvarado; Anchia; Anderson;
Ashby; Aycock; Bell; Bohac; Bonnen, D.; Bonnen, G.; Branch; Burkett; Burnam;
Button; Callegari; Canales; Capriglione; Carter; Clardy; Coleman; Collier; Cook;
Cortez; Craddick; Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.;
Davis, Y.; Deshotel; Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney;
Farrar; Fletcher; Flynn; Frank; Frullo; Geren; Giddings; Goldman; Gonzales;
Gonza´lez, M.; Gonzalez, N.; Gooden; Guerra; Guillen; Gutierrez; Harless;
Harper-Brown; Hernandez Luna; Herrero; Hilderbran; Howard; Huberty;
Hughes; Hunter; Isaac; Johnson; Kacal; Keffer; King, K.; King, P.; King, S.;
King, T.; Kleinschmidt; Klick; Kolkhorst; Krause; Kuempel; Larson;
Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano; Lucio; Ma´ rquez;
Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles; Miller, D.; Miller, R.;
Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez; Orr; Otto; Paddie;
Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts; Price; Raney; Ratliff;
Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.; Rodriguez, J.; Rose; Sanford;
Schaefer; Sheets; Sheffield, J.; Sheffield, R.; Simmons; Simpson; Smith;
Smithee; Springer; Stephenson; Stickland; Strama; Taylor; Thompson, E.;
Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo;
Walle; White; Workman; Wu; Zedler; Zerwas.
Absent, Excused — Oliveira.
LEAVES OF ABSENCE GRANTED
On motion of Representative S. Thompson and by unanimous consent, all
members who were granted leaves of absence on the previous legislative day
were granted leaves for this legislative day.
RULES SUSPENDED
Representative S. Thompson moved to suspend all necessary rules to take up
and consider at this time, on third reading and final passage, the bills on the local,
consent, and resolutions calendar which were considered on the previous
legislative day.
The motion prevailed.
2202 83rd LEGISLATURE — REGULAR SESSION
MOTION FOR ONE RECORD VOTE
On motion of Representative S. Thompson and by unanimous consent, the
house agreed to use the first record vote taken for all those bills on the local,
consent, and resolutions calendar that require a record vote on third reading and
final passage, with the understanding that a member may record an individual
vote on any bill with the journal clerk.
LOCAL, CONSENT, AND RESOLUTIONS CALENDAR
THIRD READING
The following bills which were considered on second reading on the
previous legislative day on the local, consent, and resolutions calendar were laid
before the house, read third time, and passed by the following record vote
(members registering votes and the results of the vote are shown following bill
number).
(Record 437): 147 Yeas, 0 Nays, 2 Present, not voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips;
Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent, Excused — Oliveira.
SB 162
SB 166
SB 274
SB 276 (Capriglione, Sanford, Schaefer, and Simpson - no)i(143i-i4i-i2)
SB 649 (Simpson - no)i(146i-i1i-i2)
SB 748
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2203
SB 820
SB 852
SB 905
SB 965
HB 138 (Anderson, Flynn, Krause, Schaefer, Simpson, Stickland, and
Zedler - no)i(140i-i7i-i2)
SB 902
SB 181
HB 274 (Anderson, Capriglione, Flynn, and Schaefer - no) (143 - 4 - 2)
HB 294 (Anderson, Flynn, Frullo, Goldman, Hunter, Kleinschmidt,
Kuempel, Lavender, Leach, Parker, Perry, Schaefer, Simmons, Simpson, and
Springer - no) (132 - 15 - 2)
HB 340 (Anderson, Flynn, and Zedler - no) (144 - 3 - 2)
SB 265 (Krause - no) (146 - 1 - 2)
HB 396 (Anderson, Flynn, Simpson, and Zedler - no) (143 - 4 - 2)
SB 1041 (Anderson, Flynn, Krause, Stickland, and Zedler - no) (142 - 5 - 2)
SB 334
HB 693 (Krause and Stickland - no) (145 - 2 - 2)
HB 746
HB 796 (Anderson, Burkett, Capriglione, Flynn, Krause, Lavender, Perry,
Phillips, Sanford, Schaefer, Simpson, Stickland, and Zedler - no) (134 - 13 - 2)
HB 842
HB 843
HB 894
HB 932
SB 412 (Anderson, Flynn, Krause, Stickland, and Zedler - no) (142 - 5 - 2)
SB 458
HB 1018 (Capriglione, Phillips, Sanford, Schaefer, and Simpson - no)
(142i-i5i-i2)
HB 1020
HB 1044 (Anderson, Capriglione, Flynn, Krause, Sanford, Schaefer,
Simpson, Stickland, and Zedler - no) (138 - 8 - 2)
SB 506
HB 1185 (Krause, Schaefer, and Springer - no) (144 - 3 - 2)
HB 1198 (Krause, Stickland, Taylor, and E. S. Turner - no) (143 - 4 - 2)
SB 365
2204 83rd LEGISLATURE — REGULAR SESSION
SB 611
HB 1224
HB 1249 (Springer - no) (146 - 1 - 2)
HB 1354
HB 1355
HB 1442
HB 1454 (Krause, Schaefer, Simpson, and Stickland - no) (143 - 4 - 2)
HB 1458
HB 1472
HB 1492
HB 1506
HB 1520
SB 595 (Anderson, Flynn, and Zedler - no) (144 - 3 - 2)
HB 1563 (Anderson, Capriglione, Flynn, Schaefer, Simpson, and
Zedleri-ino) (141i-i6i-i2)
HB 1586
HB 1593
HB 1594 (Taylor - no) (146 - 1 - 2)
HB 1632
HB 1678 (Krause - no) (146 - 1 - 2)
SB 795
SB 777
SB 866
HB 1781
HB 1800 (Taylor - no) (146 - 1 - 2)
HB 1801 (Taylor - no) (146 - 1 - 2)
SB 366
HB 1874
HB 1875
HB 1888 (Anderson, Flynn, Krause, Sanford, Schaefer, Simpson, Stickland,
E. S. Turner, and Zedler - no) (138 - 9 - 2)
HB 1895
SB 411
SB 330
SB 849
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2205
HB 1947
SB 972
SB 466 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 1971 (Anderson and Flynn - no) (145 - 2 - 2)
HB 1982 (Schaefer and Simpson - no) (145 - 2 - 2)
SB 920
HB 2000 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 2028
HB 2029
HB 2055
HB 2099 (Schaefer - no) (146 - 1 - 2)
HB 2112
HB 2135
HB 2155
HB 2204 (Krause and Stickland - no) (145 - 2 - 2)
HB 2293
HB 2312 (Schaefer - no) (146 - 1 - 2)
HB 2318
HB 2356
HB 2362
HB 2407 (Lavender - no) (146 - 1 - 2)
HB 2409
HB 2424
HB 2448 (Schaefer - no) (146 - 1 - 2)
HB 2474 (Taylor - no) (146 - 1 - 2)
HB 2478 (Anderson and Flynn - no) (145 - 2 - 2)
HB 2482 (Anderson, Flynn, Schaefer, and Simpson - no) (143 - 4 - 2)
HB 2537 (Krause, Schaefer, and Simpson - no) (144 - 3 - 2)
HB 2549
HB 2550 (Goldman, Leach, R. Sheffield, Simmons, and Springer - no)
(142i-i5i-i2)
HB 2580 (Capriglione, Harless, Schaefer, and Simpson - no) (143 - 4 - 2)
SB 655
HB 2610 (Schaefer and Simpson - no) (145 - 2 - 2)
2206 83rd LEGISLATURE — REGULAR SESSION
HB 2619
HB 2621
HB 2645 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 2688
HB 2704
HB 2718 (Capriglione, Goldman, Hunter, Krause, Kleinschmidt, Lavender,
Leach, Parker, Perry, Sanford, Schaefer, Simmons, Simpson, Springer, Stickland,
and Taylor - no) (131 - 16 - 2)
SB 1489 (Capriglione, Goldman, Isaac, Schaefer, Simmons, Simpson, and
Taylor - no) (140 - 7 - 2)
HB 2749
HB 2766
HB 2806 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 2912
HB 2913
HB 2935 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 2947
HB 3028
HB 3063 (Simpson - no) (146 - 1 - 2)
HB 3066 (Simpson - no) (146 - 1 - 2)
HB 3067 (Simpson - no) (146 - 1 - 2)
HB 3097
HB 3125 (Simpson - no) (146 - 1 - 2)
HB 3137
HB 3178
HB 3209 (Krause, R. Sheffield, Stickland, and Taylor - no) (143 - 4 - 2)
HB 3212 (Anderson, Capriglione, Flynn, and Schaefer - no) (143 - 4 - 2)
HB 3256 (Simpson - no) (146 - 1 - 2)
SB 1026
HB 3357
HB 3397
HB 3412
HB 3413
HB 3422
HB 3483 (Simpson and Springer - no) (145 - 2 - 2)
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2207
HB 3511
HB 3523 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 3662
HB 3677 (Krause - no) (146 - 1 - 2)
HB 3729 (Krause and Stickland - no) (145 - 2 - 2)
HB 3748 (Burkett, Capriglione, Frullo, Goldman, Gonzales, Harper-Brown,
Hunter, Krause, Kleinschmidt, Kuempel, Lavender, Leach, Murphy, Otto, Parker,
Perry, Price, Riddle, Sanford, Schaefer, Simmons, Simpson, Springer, E. S.
Turner, and Zedler - no) (122 - 25 - 2)
HB 3756 (Anderson, Flynn, and Zedler - no) (144 - 3 - 2)
HB 3764
HB 3787
HB 3795 (Capriglione, Sanford, Schaefer, and Simpson - no) (143 - 4 - 2)
HB 3798
HB 3813 (Sanford and Simpson - no) (145 - 2 - 2)
SB 1093
HB 3874
HB 3875
HB 3905
HB 3925
SB 471
SB 686
SB 733
HB 154
HB 339
HB 343 (Anderson, Flynn, Krause, Simpson, and Stickland - no)
(142i-i5i-i2)
HB 367 (Sanford, Schaefer, and Simpson - no) (144 - 3 - 2)
HB 438 (Anderson, Flynn, and Phillips - no) (144 - 3 - 2)
HB 655
HB 826
HB 1147
HB 1501 (Simpson - no) (146 - 1 - 2)
HB 1544 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 1662
2208 83rd LEGISLATURE — REGULAR SESSION
HB 1692 (Capriglione, Lavender, Perry, Sanford, Schaefer, R. Sheffield, and
Springer - no) (140 - 7 - 2)
HB 1724
HB 1846 (Anderson, Flynn, Krause, Simpson, and Stickland - no)
(142i-i5i-i2)
SB 1537
HB 2094 (Anderson, Capriglione, Flynn, Krause, Sanford, Schaefer,
Simpson, Stickland, and Zedler - no) (138 - 9 - 2)
HB 2111 (Anderson, Flynn, Schaefer, and Zedler - no) (143 - 4 - 2)
SB 1236
HB 2380
HB 2388
HB 2485
HB 2501 (Schaefer - no) (146 - 1 - 2)
HB 2509 (Sanford and Simpson - no) (145 - 2 - 2)
HB 2562
HB 2607
HB 2662 (Simpson - no) (146 - 1 - 2)
HB 2772 (Anderson, Flynn, Frullo, Goldman, Krause, Kuempel, Lavender,
Parker, Schaefer, Simmons, Simpson, Springer, and Stickland - no) (134 - 13 - 2)
HB 2825
HB 2874
HB 2883 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 3070
HB 3085 (Burkett, Capriglione, Frullo, Goldman, Hunter, Kleinschmidt,
Kuempel, Lavender, Leach, Murphy, Parker, Schaefer, R. Sheffield, Simmons,
Simpson, and Stickland - no) (131 - 16 - 2)
HB 3096
HB 3106
HB 3296 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 3307
SB 1019
HB 3433 (Capriglione, Schaefer, and Simpson - no) (144 - 3 - 2)
HB 3567 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 3578 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 3589 (Simpson - no) (146 - 1 - 2)
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2209
HB 3604 (Anderson and Schaefer - no) (145 - 2 - 2)
HB 3605 (Anderson - no) (146 - 1 - 2)
HB 3613
HB 3659
HB 3739 (Schaefer and Simpson - no) (145 - 2 - 2)
HB 3761 (Anderson and Simpson - no) (145 - 2 - 2)
HB 3762 (Krause - no) (146 - 1 - 2)
HB 3800
HB 3896 (Simpson - no) (146 - 1 - 2)
HB 3935
SB 901
HB 2454
HB 2620 (Harless, Schaefer, and Simpson - no) (144 - 3 - 2)
HB 2025
SB 1157
The following resolutions which were laid out on the previous legislative
day on the local, consent, and resolutions calendar were adopted by the above
referenced vote (Record 437): 147 Yeas, 0 Nays, 2 Present, not voting (members
registering votes and the results of the vote are shown following bill number).
HCR 51
HCR 62
HCR 68
HCR 82
HCR 89 (Schaefer and Simpson - no) (145 - 2 - 2)
HCR 59
HCR 96
HR 964
(Oliveira now present)
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. 20).
LEAVE OF ABSENCE GRANTED
The following member was granted leave of absence temporarily for today
to attend a meeting of the Conference Committee on SBi1:
Pitts on motion of Geren.
2210 83rd LEGISLATURE — REGULAR SESSION
GENERAL STATE CALENDAR
SENATE BILLS
THIRD READING
The following bills were laid before the house and read third time:
SB 885 ON THIRD READING
(Harper-Brown - House Sponsor)
SB 885, A bill to be entitled An Act relating to notice of utility rate
increases.
SBi885 was passed by (Record 438): 147 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent, Excused, Committee Meeting — Pitts.
SB 971 ON THIRD READING
(Deshotel - House Sponsor)
SB 971, A bill to be entitled An Act relating to the purposes, designation,
and funding of a transportation reinvestment zone for port projects; providing
authority to issue bonds; authorizing an assessment.
SBi971 was passed by (Record 439): 101 Yeas, 44 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock;
Branch; Burkett; Burnam; Button; Callegari; Canales; Clardy; Coleman; Collier;
Cook; Dale; Darby; Davis, J.; Davis, Y.; Deshotel; Dukes; Dutton; Eiland; Farias;
Farney; Farrar; Geren; Giddings; Gonzales; Gonza´lez, M.; Gonzalez, N.; Guerra;
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2211
Guillen; Gutierrez; Hernandez Luna; Herrero; Howard; Huberty; Hunter;
Johnson; Kacal; Keffer; King, K.; King, P.; King, T.; Kleinschmidt; Kolkhorst;
Kuempel; Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer;
McClendon; Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Patrick; Perez; Phillips; Pickett;
Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.; Rodriguez, J.;
Rose; Sheffield, J.; Sheffield, R.; Simmons; Simpson; Smith; Stephenson;
Strama; Thompson, E.; Thompson, S.; Turner, C.; Turner, S.; Villalba; Villarreal;
Vo; Walle; Workman; Wu; Zerwas.
Nays — Bell; Bohac; Bonnen, G.; Capriglione; Carter; Craddick; Creighton;
Crownover; Davis, S.; Elkins; Fallon; Fletcher; Flynn; Frank; Frullo; Goldman;
Gooden; Harless; Harper-Brown; Hilderbran; Hughes; Isaac; King, S.; Klick;
Krause; Larson; Laubenberg; Lavender; Leach; Lewis; Murphy; Parker; Perry;
Price; Sanford; Schaefer; Sheets; Springer; Stickland; Taylor; Toth; Turner, E.S.;
White; Zedler.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent, Excused, Committee Meeting — Pitts.
Absent — Cortez; Smithee.
STATEMENTS OF VOTE
I was shown voting no on Record No. 439. I intended to vote yes.
G. Bonnen
I was shown voting yes on Record No. 439. I intended to vote no.
Button
I was shown voting yes on Record No. 439. I intended to vote no.
Dale
I was shown voting yes on Record No. 439. I intended to vote no.
Gonzales
I was shown voting yes on Record No. 439. I intended to vote no.
Phillips
SB 349 ON THIRD READING
(Creighton - House Sponsor)
SB 349, A bill to be entitled An Act relating to standards for power lines.
SBi349 was passed by (Record 440): 147 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
2212 83rd LEGISLATURE — REGULAR SESSION
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent, Excused, Committee Meeting — Pitts.
GENERAL STATE CALENDAR
HOUSE BILLS
THIRD READING
The following bills were laid before the house and read third time:
HB 590 ON THIRD READING
(by Naishtat)
HB 590, A bill to be entitled An Act relating to determining a child s’
eligibility for a school district s’ special education program on the basis of a visual
impairment.
HBi590 was passed by (Record 441): 80 Yeas, 63 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Aycock; Bonnen, G.; Canales;
Collier; Cortez; Dale; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes; Dutton;
Eiland; Farias; Farney; Farrar; Giddings; Gonzales; Gonza´lez, M.; Gonzalez, N.;
Gooden; Guerra; Guillen; Gutierrez; Hernandez Luna; Herrero; Howard;
Huberty; Hunter; Johnson; Kacal; Keffer; King, S.; King, T.; Kolkhorst;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, R.; Moody; Mun˜oz; Naishtat; Neva´rez; Oliveira; Otto;
Patrick; Perez; Pickett; Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez,
E.; Rodriguez, J.; Rose; Sheffield, J.; Simmons; Simpson; Smith; Smithee;
Strama; Turner, C.; Turner, S.; Villalba; Villarreal; Vo; Walle; Wu; Zerwas.
Nays — Anderson; Ashby; Bell; Bohac; Branch; Burkett; Button; Callegari;
Capriglione; Carter; Clardy; Cook; Craddick; Creighton; Crownover; Darby;
Elkins; Fallon; Fletcher; Flynn; Frank; Frullo; Geren; Goldman; Harless;
Harper-Brown; Hilderbran; Hughes; Isaac; King, K.; King, P.; Kleinschmidt;
Klick; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Miller,
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2213
D.; Murphy; Orr; Paddie; Parker; Perry; Phillips; Price; Sanford; Schaefer;
Sheets; Sheffield, R.; Springer; Stephenson; Stickland; Taylor; Thompson, E.;
Thompson, S.; Toth; Turner, E.S.; White; Workman; Zedler.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent, Excused, Committee Meeting — Pitts.
Absent — Burnam; Coleman; Morrison; Raney.
STATEMENTS OF VOTE
I was shown voting no on Record No. 441. I intended to vote yes.
Bohac
I was shown voting no on Record No. 441. I intended to vote yes.
Cook
When Record No. 441 was taken, I was in the house but away from my
desk. I would have voted no.
Morrison
I was shown voting no on Record No. 441. I intended to vote yes.
S. Thompson
HB 6 ON THIRD READING
(by Otto, Anchia, Harless, Howard, et al.)
HB 6, 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.
HBi6 was passed by (Record 442): 144 Yeas, 1 Nays, 2 Present, not voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Collier; Cook; Craddick; Creighton; Crownover;
Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes; Dutton; Eiland;
Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank; Frullo; Geren;
Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez, N.; Gooden; Guerra;
Guillen; Gutierrez; Harless; Harper-Brown; Hernandez Luna; Herrero;
Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal; Keffer;
King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst; Krause;
Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano;
Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles;
Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez;
Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Price;
Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.; Rodriguez, J.;
Rose; Sanford; Schaefer; Sheets; Sheffield, J.; Sheffield, R.; Simmons; Smith;
2214 83rd LEGISLATURE — REGULAR SESSION
Smithee; Springer; Stephenson; Stickland; Strama; Taylor; Thompson, E.;
Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo;
Walle; White; Workman; Wu; Zedler; Zerwas.
Nays — Simpson.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent, Excused, Committee Meeting — Pitts.
Absent — Coleman; Cortez.
STATEMENT OF VOTE
When Record No. 442 was taken, my vote failed to register. I would have
voted yes.
Cortez
(Pitts now present)
HB 2503 ON THIRD READING
(by Bohac)
HB 2503, A bill to be entitled An Act relating to the territory that may be
included in a single county election precinct.
HBi2503 was passed by (Record 443): 146 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell; Bohac;
Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales; Capriglione;
Carter; Clardy; Collier; Cook; Cortez; Craddick; Creighton; Crownover; Dale;
Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes; Dutton; Eiland; Elkins;
Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank; Frullo; Geren; Giddings;
Goldman; Gonzales; Gonza´lez, M.; Gonzalez, N.; Gooden; Guerra; Guillen;
Gutierrez; Harless; Harper-Brown; Hernandez Luna; Herrero; Hilderbran;
Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal; Keffer; King, K.;
King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst; Krause; Kuempel;
Larson; Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano; Lucio;
Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles; Miller, D.;
Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez; Oliveira; Orr;
Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts; Price; Raney;
Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.; Rodriguez, J.; Rose;
Sanford; Schaefer; Sheets; Sheffield, J.; Sheffield, R.; Simmons; Simpson; Smith;
Smithee; Springer; Stephenson; Stickland; Strama; Taylor; Thompson, E.;
Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo;
Walle; White; Workman; Wu; Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Alonzo; Coleman.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2215
HB 2290 ON THIRD READING
(by Lozano, et al.)
HB 2290, A bill to be entitled An Act relating to the use for administrative
costs of a portion of money received by certain entities to implement a
supplemental environmental project.
HBi2290 was passed by (Record 444): 144 Yeas, 1 Nays, 3 Present, not
voting.
Yeas — Allen; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell; Bohac;
Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales; Capriglione;
Carter; Clardy; Collier; Cook; Cortez; Craddick; Creighton; Crownover; Dale;
Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes; Dutton; Eiland; Elkins;
Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank; Frullo; Geren; Giddings;
Goldman; Gonzales; Gonza´lez, M.; Gonzalez, N.; Gooden; Guerra; Guillen;
Gutierrez; Harless; Harper-Brown; Hernandez Luna; Herrero; Hilderbran;
Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal; Keffer; King, P.; King,
S.; King, T.; Kleinschmidt; Klick; Kolkhorst; Krause; Kuempel; Larson;
Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano; Lucio; Ma´ rquez;
Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles; Miller, D.; Miller, R.;
Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez; Oliveira; Orr; Otto;
Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts; Price; Raney; Ratliff;
Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.; Rodriguez, J.; Rose; Sanford;
Schaefer; Sheets; Sheffield, J.; Sheffield, R.; Simmons; Simpson; Smith;
Smithee; Springer; Stephenson; Stickland; Strama; Taylor; Thompson, E.;
Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo;
Walle; Workman; Wu; Zedler; Zerwas.
Nays — White.
Present, not voting — Mr. Speaker; Bonnen, D.(C); King, K.
Absent — Alonzo; Coleman.
STATEMENT OF VOTE
I was shown voting no on Record No. 444. I intended to vote yes.
White
HB 1448 ON THIRD READING
(by Kuempel)
HB 1448, A bill to be entitled An Act relating to the use of money deposited
to a justice court technology fund in certain counties.
HBi1448 was passed by (Record 445): 148 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
2216 83rd LEGISLATURE — REGULAR SESSION
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
HB 1358 ON THIRD READING
(by Hunter, Cook, Eiland, Kleinschmidt, Mun˜oz, et al.)
HB 1358, A bill to be entitled An Act relating to procedures for certain
audits of pharmacists and pharmacies.
HBi1358 was passed by (Record 446): 141 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Bell; Bohac;
Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales; Capriglione;
Carter; Clardy; Coleman; Collier; Cook; Craddick; Creighton; Crownover; Dale;
Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes; Dutton; Elkins; Fallon; Farias;
Farney; Farrar; Fletcher; Flynn; Frank; Frullo; Geren; Giddings; Goldman;
Gonzales; Gonza´lez, M.; Gonzalez, N.; Guerra; Guillen; Harless; Harper-Brown;
Hernandez Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac;
Johnson; Kacal; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Aycock; Cortez; Darby; Eiland; Gooden; Gutierrez; Keffer.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2217
STATEMENTS OF VOTE
When Record No. 446 was taken, my vote failed to register. I would have
voted yes.
Cortez
When Record No. 446 was taken, my vote failed to register. I would have
voted yes.
Gooden
HB 1079 ON THIRD READING
(by Smith, Guillen, Kleinschmidt, et al.)
HB 1079, A bill to be entitled An Act relating to the procedural
requirements for action by the Texas Commission on Environmental Quality on
applications for production area authorizations.
HBi1079 was passed by (Record 447): 135 Yeas, 10 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Button; Callegari; Capriglione; Carter;
Clardy; Coleman; Cook; Cortez; Craddick; Creighton; Crownover; Dale; Darby;
Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes; Dutton; Eiland; Elkins; Fallon;
Farney; Farrar; Fletcher; Flynn; Frank; Frullo; Geren; Giddings; Goldman;
Gonzales; Guerra; Guillen; Harless; Harper-Brown; Hernandez Luna; Herrero;
Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal; Keffer;
King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst; Krause;
Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano;
Lucio; Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles; Miller, D.;
Miller, R.; Moody; Mun˜oz; Murphy; Naishtat; Orr; Otto; Paddie; Parker; Patrick;
Perez; Perry; Phillips; Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds;
Riddle; Ritter; Rodriguez, E.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Nays — Burnam; Canales; Collier; Farias; Gonza´lez, M.; Gonzalez, N.;
Ma´rquez; Morrison; Oliveira; Rodriguez, J.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Gooden; Gutierrez; Neva´rez.
STATEMENTS OF VOTE
When Record No. 447 was taken, my vote failed to register. I would have
voted yes.
Gooden
2218 83rd LEGISLATURE — REGULAR SESSION
When Record No. 447 was taken, I was in the house but away from my
desk. I would have voted no.
Neva´rez
HB 7 ON THIRD READING
(by Darby, Pitts, Gonzales, Mene´ndez, S. Turner, et al.)
HB 7, A bill to be entitled An Act relating to the amounts, availability, and
use of certain statutorily dedicated revenue and accounts; reducing or affecting
the amounts or rates of certain statutorily dedicated fees and assessments.
HB 7 - STATEMENT OF LEGISLATIVE INTENT
REPRESENTATIVE BURNAM:iiMr. Darby, you and I had a little conversation
earlier today, and you know that there s’ concern about the impact on the solid
waste fee, is that correct?
REPRESENTATIVE DARBY:iiThat s’ correct.
BURNAM:iiAnd, as you were explaining and laying it out yesterday, there was
some conversation about the split. Exactly how has that split been working, and
what is your intent for the future?
DARBY:iiIt was split 50-50, now it s’ going to be split two-thirds, one-third.
Two-thirds to pay the TCEQ to administer the program, and the third going to the
local COGs.
BURNAM:iiAnd so, it s’ understandable if all they understand is that change in
the percentage that a lot of our local governments and COGs could be concerned
about this legislation, but what exactly is your intent, and why you think we need
to do this?
DARBY:iiThe intent is to fully fund the TCEQ to administer the program, but it
brings––by doing a third percentage––it brings it more closely aligned to what we
appropriate. And the idea is if we r’e not going to continue to accumulate
balances into the account, then the urge would be for the appropriations to fully
fund, if you will, that third to the COGs.
BURNAM:iiSo do you think one of the concerns might be whether or not we r’e
actually going to see it fully funded in this appropriation process this session?
DARBY:iiI don t’ think it s’ going to be fully funded, but there s’ still an
appropriation process that needs to be involved, but, certainly, as we bring that
percentage closer, I think it would be certainly argumentative that we should fully
fund up to the percentage––up to that third percentage for the COGs.
BURNAM:iiSo, perspectively—maybe not this session—you r’e thinking that
that s’ something the Appropriations Committee should address?
DARBY:iiI think it will be.
BURNAM:iiHow are we going to avoid shortfalls in the short term for our short
COGs?
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2219
DARBY:iiWell, I don t’ think we r’e going to avoid––certainly, we r’e going to
have to have a hand in the appropriation process, and have the Appropriations
Committee and this house determine what s’ an appropriate level of funding, but
by reducing the incentive to accumulate balances in the GR dedicated account
that will give incentive, I believe, to the appropriations process to fully fund.
BURNAM:iiYou think by passing this legislation, it will provide an incentive to
increase the funding?
DARBY:iiHopefully it will.
BURNAM:iiOkay, and so how do we make sure that happens? Do the COGs
need to become lobbyists?
DARBY:iiI think we need to continue to work within the process we have. This
allows us to bring more closely in line with the revenue, we r’e reducing the fees,
and we r’ e reallocating percentages, so hopefully we can get more to an
appropriate figure to fund these COG projects.
REMARKS ORDERED PRINTED
Representative Burnam moved to print remarks between Representative
Darby and Representative Burnam.
The motion prevailed.
Amendment No. 1
Representative Martinez Fischer offered the following amendment to HBi7:
Amend HBi7 on third reading by adding the following appropriately
numbered SECTIONS to the bill and renumbering subsequent SECTIONS of the
bill accordingly:
SECTIONi____.iiSubchapter F, Chapter 401, Government Code, is
amended by adding Section 401.106 to read as follows:
Sec.i401.106.iiDRIVING WHILE INTOXICATED PREVENTION;
COLLECTION OF CERTAIN FEES. (a) In this section, "offense relating to the
operating of a motor vehicle while intoxicated" has the meaning assigned by
Section 49.09(c), Penal Code.
(b)iiCourt costs imposed under Article 102.018(e), Code of Criminal
Procedure, shall be deposited in a general revenue dedicated account to the credit
of the office of the governor to be used and may be appropriated only for the
support of programs for the prevention of offenses relating to the operating of a
motor vehicle while intoxicated in this state.
SECTIONi____.iiArticle 102.018, Code of Criminal Procedure, is amended
by adding Subsection (e) to read as follows:
(e)iiOn the conviction of an offense relating to the operating of a motor
vehicle while intoxicated, as defined by Section 49.09(c)(1)(A) or (B), Penal
Code, the court shall impose a cost of $10 on a defendant. A cost imposed under
this subsection is in addition to a cost imposed under Subsection (a), (b), or (c).
Each cost collected under this subsection shall be deposited in the account to the
credit of the office of the governor as provided by Section 401.106, Government
Code, for the prevention of driving while intoxicated.
2220 83rd LEGISLATURE — REGULAR SESSION
SECTIONi____.iiSubchapter B, Chapter 102, Government Code, is
amended by adding Section 102.0215 to read as follows:
Sec.i102.0215.iiADDITIONAL COURT COSTS: CODE OF CRIMINAL
PROCEDURE. A defendant who is convicted of an offense relating to the
operating of a motor vehicle while intoxicated shall pay a cost on conviction, in
addition to all other costs, to help fund the prevention of driving while
intoxicated under Section 401.106, Government Code (Art. 102.018(e), Code of
Criminal Procedure) .i.i. $10.
SECTIONi____.iiArticle 102.018(e), Code of Criminal Procedure, as added
by this Act, applies only to a cost on conviction for an offense committed on or
after September 1, 2013. An offense committed before September 1, 2013, is
governed by the law in effect on the date the offense was committed, and the
former law is continued in effect for that purpose. For purposes of this section, an
offense was committed before September 1, 2013, if any element of the offense
was committed before that date.
Amendment No. 1 was adopted.
Amendment No. 2
Representative Y. Davis offered the following amendment to HBi7:
Amend HBi7 on third reading by adding to the end of amended Section
501.138(b-2), Transportation Code, as amended by Amendment 10 by Darby,
"The Texas Commission on Environmental Quality by rule shall adopt criteria for
making the finding required by this subsection."
AMENDMENT NO. 2 - STATEMENT OF LEGISLATIVE INTENT
REPRESENTATIVE Y. DAVIS:iiWhat I wanted to do was just ask a couple
questions, because the amendment was not as––I d’ expected it to have a couple
things on it. One was––we were setting out the criterias so that we could make
sure that TCEQ had a criteria to how these funds would be spent on various
projects, that s’ correct?
REPRESENTATIVE DARBY:iiThat s’ exactly correct.
Y. DAVIS:iiAnd one of the concerns I had is to make sure that those TIF dollars
that were used for nonattainment areas could stay in nonattainment areas?
DARBY:iiThat s’ exactly the purpose.
Y. DAVIS:iiAnd so I just wanted to make sure that it is not the intent for us to
take turf funds from areas who are used for mitigation, is that correct?
DARBY:iiThat s’ correct.
REMARKS ORDERED PRINTED
Representative Y. Davis moved to print remarks between Representative
Darby and Representative Y. Davis.
The motion prevailed.
Amendment No. 2 was adopted.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2221
HB 7, as amended, was passed by (Record 448): 146 Yeas, 1 Nays, 2
Present, not voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, T.; Kleinschmidt; Klick; Kolkhorst;
Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Longoria;
Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez;
Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat;
Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips;
Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Smith; Smithee; Springer; Stephenson; Stickland;
Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.; Turner, E.S.;
Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu; Zedler; Zerwas.
Nays — Simpson.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — King, S.
The chair stated that HBi7 was passed subject to the provisions of
ArticleiIII, Section 49a of the Texas Constitution.
STATEMENT OF VOTE
When Record No. 448 was taken, I was in the house but away from my
desk. I would have voted yes.
S. King
HB 29 ON THIRD READING
(by Branch, D. Bonnen, Alvarado, Herrero, et al.)
HB 29, A bill to be entitled An Act relating to requiring certain general
academic teaching institutions to offer a four-year fixed tuition price plan to
undergraduate students.
HBi29 was passed by (Record 449): 148 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
2222 83rd LEGISLATURE — REGULAR SESSION
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
HB 1803 ON THIRD READING
(by Callegari)
HB 1803, A bill to be entitled An Act relating to the renewal of a controlled
substance registration by physicians; changing the payment schedule for a fee.
HBi1803 was passed by (Record 450): 145 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Craddick; Creighton;
Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes;
Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank;
Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´ lez, M.; Gonzalez, N.;
Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez Luna;
Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal;
Keffer; King, K.; King, P.; King, T.; Kleinschmidt; Klick; Kolkhorst; Krause;
Kuempel; Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano; Lucio;
Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles; Miller, D.;
Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez; Oliveira; Orr;
Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts; Price; Raney;
Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.; Rodriguez, J.; Rose;
Sanford; Schaefer; Sheets; Sheffield, J.; Sheffield, R.; Simmons; Simpson; Smith;
Smithee; Springer; Stephenson; Stickland; Strama; Taylor; Thompson, E.;
Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo;
Walle; White; Workman; Wu; Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Cortez; King, S.; Larson.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2223
STATEMENTS OF VOTE
When Record No. 450 was taken, my vote failed to register. I would have
voted yes.
Cortez
When Record No. 450 was taken, I was in the house but away from my
desk. I would have voted yes.
S. King
HB 137 ON THIRD READING
(by Raymond and R. Miller)
HB 137, A bill to be entitled An Act relating to the information reported to
the comptroller by a coin-operated machine license holder, the penalty for failure
to report that information, and the penalty for gambling promotion.
HBi137 was passed by (Record 451): 139 Yeas, 6 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Ashby; Aycock; Bell; Bohac;
Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales; Capriglione;
Carter; Clardy; Coleman; Collier; Cook; Craddick; Creighton; Crownover; Dale;
Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes; Dutton; Eiland; Elkins;
Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank; Frullo; Geren; Giddings;
Goldman; Gonzales; Gonza´lez, M.; Gonzalez, N.; Gooden; Guerra; Guillen;
Gutierrez; Harless; Harper-Brown; Hernandez Luna; Herrero; Hilderbran;
Howard; Huberty; Hunter; Isaac; Johnson; Kacal; Keffer; King, K.; King, P.;
King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst; Krause; Kuempel; Larson;
Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano; Lucio; Ma´ rquez;
Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles; Miller, D.; Miller, R.;
Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez; Oliveira; Orr; Otto;
Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts; Price; Raney; Ratliff;
Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.; Rodriguez, J.; Rose; Sanford;
Sheets; Sheffield, J.; Sheffield, R.; Smith; Smithee; Springer; Stephenson;
Strama; Taylor; Thompson, E.; Thompson, S.; Turner, C.; Turner, E.S.; Turner,
S.; Villalba; Villarreal; Vo; Walle; Workman; Wu; Zedler; Zerwas.
Nays — Schaefer; Simmons; Simpson; Stickland; Toth; White.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Anderson; Cortez; Hughes.
STATEMENT OF VOTE
When Record No. 451 was taken, my vote failed to register. I would have
voted yes.
Cortez
2224 83rd LEGISLATURE — REGULAR SESSION
HB 772 ON THIRD READING
(by Howard, Zerwas, Callegari, J. Sheffield, G. Bonnen, et al.)
HB 772, A bill to be entitled An Act relating to the immunization data
included in and excluded from the immunization registry.
Amendment No. 1
Representatives Kolkhorst, G. Bonnen, and J. Sheffield offered the
following amendment to HBi772:
Amend HBi772 on third reading as follows:
(1)iiIn SECTION 1 of the bill, in added Section 161.007(a)(4), Health and
Safety Code (page 2, line 6, house committee printing), between "request
removal" and the colon, insert "at any time, including".
(2)iiIn SECTION 1 of the bill, in added Section 161.007(a)(4)(B), Health
and Safety Code (page 2, line 9, house committee printing), strike "at the" and
substitute "each".
(3)iiIn SECTION 1 of the bill, in added Section 161.007(a)(4)(E), Health
and Safety Code (page 2, line 16, house committee printing), strike "and" and
substitute "[and]".
(4)iiIn SECTION 1 of the bill, in amended Section 161.007(a)(5), Health
and Safety Code (page 2, line 17, house committee printing), between "(5)" and
"include", insert the following:
ensure that an individual or the individual s’ legally authorized representative is
not required to request removal from the registry more than one time and that,
after a request for removal is made, the individual s’ immunization information
will not be included in the registry unless the individual or the individual s’ legally
authorized representative submits to the department a written request for
inclusion of the individual s’ information in the registry; and
(6)
(5)iiIn SECTION 10 of the bill (page 11, line 23, house committee printing),
between "SECTION 10." and "The changes", insert "(a)".
(6)iiImmediately following SECTION 10 of the bill (page 12, between lines
4-5, house committee printing), insert the following:
(b)iiThe changes in law made by this Act do not authorize the Department of
State Health Services to include in the immunization registry established under
Subchapter A, Chapter 161, Health and Safety Code, immunization information
of an individual who is 18 years of age or older and whose immunization
information was not included in the registry on or before January 1, 2015, unless
the department receives immunization data from a health care provider who:
(1)iiadministers an immunization to the individual after that date and
elects to provide the individual s’ immunization information to the department;
and
(2)iinotifies the individual before submission of the information to the
department:
(A)iithat the health care provider is providing the information to the
department for inclusion in the registry;
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2225
(B)iithat the information will remain in the registry until removal is
requested by the individual or the individual s’ legally authorized representative;
and
(C)iiof the procedures for requesting removal from the registry
under Subchapter A, Chapter 161, Health and Safety Code, as amended by this
Act.
AMENDMENT NO. 1 - STATEMENT OF LEGISLATIVE INTENT
REPRESENTATIVE HOWARD:iiI want to make sure that this is correct, the way
you understand it. You can opt out multiple times through this system, and once
you opt out, you are always out unless you consent to be admitted back in? You
are out once you opt out?
REPRESENTATIVE KOLKHORST:iiCorrect.
HOWARD:iiOkay, and that adults are not automatically opted in. That this is
mainly––
KOLKHORST:iiYou and I are not in ImmTrac and we will not be in ImmTrac,
unless we request to be in ImmTrac. We are given the information by our
provider that says we r’e going to put this in, and we have the option at that point
to opt out.
HOWARD:iiOkay, so, seems to me, do you not think that this clarifies what was
brought up yesterday and that we v’ e assured people that you have multiple
opportunities to opt out, and once you opt out, you are always opted out?
KOLKHORST:iiRight. Representative Howard, I just want to say that the
importance of––the reason I m ’ going to vote for your bill, and I appreciate your
hard work on this bill, is I think it gives us more protections than we currently
have in the ImmTrac system today. It empowers the parents at each and every
vaccination to get out of the system, and that s’ what I want to do. As I told you, I
wasn t’ even cognizant of if my children were in the ImmTrac system. I will now
know every time I take a vaccination.
Amendment No. 1 was adopted.
HB 772, as amended, was passed by (Record 452): 99 Yeas, 47 Nays, 2
Present, not voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Ashby; Aycock; Bohac; Bonnen,
G.; Branch; Burnam; Callegari; Clardy; Coleman; Collier; Cook; Cortez;
Crownover; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes; Dutton; Eiland;
Farias; Farney; Farrar; Fletcher; Geren; Gonza´lez, M.; Gonzalez, N.; Gooden;
Guerra; Guillen; Gutierrez; Hernandez Luna; Herrero; Howard; Huberty; Hunter;
Johnson; Kacal; Keffer; King, K.; King, S.; King, T.; Kolkhorst; Kuempel;
Larson; Lewis; Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer;
McClendon; Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Patrick; Perez; Pickett; Pitts;
Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.;
2226 83rd LEGISLATURE — REGULAR SESSION
Rodriguez, J.; Rose; Sheffield, J.; Sheffield, R.; Smith; Stephenson; Strama;
Thompson, S.; Turner, C.; Turner, S.; Villalba; Villarreal; Vo; Walle; Workman;
Wu; Zerwas.
Nays — Anderson; Bell; Burkett; Button; Canales; Capriglione; Carter;
Craddick; Creighton; Dale; Darby; Elkins; Fallon; Flynn; Frank; Frullo;
Goldman; Gonzales; Harless; Harper-Brown; Hilderbran; Hughes; Isaac; King,
P.; Kleinschmidt; Klick; Krause; Laubenberg; Lavender; Leach; Parker; Perry;
Phillips; Sanford; Schaefer; Sheets; Simmons; Simpson; Smithee; Springer;
Stickland; Taylor; Thompson, E.; Toth; Turner, E.S.; White; Zedler.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Giddings; Morrison.
STATEMENTS OF VOTE
I was shown voting yes on Record No. 452. I intended to vote no.
R. Miller
When Record No. 452 was taken, I was in the house but away from my
desk. I would have voted no.
Morrison
I was shown voting yes on Record No. 452. I intended to vote no.
Riddle
REMARKS ORDERED PRINTED
Representative Howard moved to print remarks between Representative
Kolkhorst and Representative Howard.
The motion prevailed.
HB 3674 ON THIRD READING
(by Mun˜oz, Guillen, and Isaac)
HB 3674, A bill to be entitled An Act relating to eligibility of municipalities
to participate in the historic courthouse preservation and maintenance programs
administered by the Texas Historical Commission.
HBi3674 was passed by (Record 453): 85 Yeas, 60 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Aycock; Bohac; Burnam;
Callegari; Canales; Carter; Coleman; Collier; Cortez; Crownover; Davis, J.;
Davis, Y.; Deshotel; Dukes; Dutton; Eiland; Farias; Farney; Farrar; Fletcher;
Geren; Giddings; Gonza´lez, M.; Gonzalez, N.; Guerra; Guillen; Gutierrez;
Hernandez Luna; Herrero; Hilderbran; Howard; Huberty; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, S.; Klick; Kuempel; Larson; Longoria; Lozano;
Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles;
Moody; Mun˜oz; Naishtat; Neva´rez; Oliveira; Patrick; Perez; Pickett; Pitts; Price;
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2227
Ratliff; Raymond; Reynolds; Ritter; Rodriguez, E.; Rodriguez, J.; Rose;
Sheffield, J.; Smith; Stephenson; Strama; Thompson, E.; Thompson, S.; Turner,
C.; Turner, S.; Vo; Walle; Workman; Wu; Zerwas.
Nays — Anderson; Ashby; Bell; Bonnen, G.; Branch; Burkett; Button;
Capriglione; Clardy; Cook; Craddick; Creighton; Dale; Darby; Davis, S.; Elkins;
Fallon; Flynn; Frank; Frullo; Goldman; Gonzales; Gooden; Harless;
Harper-Brown; Hughes; King, P.; King, T.; Kleinschmidt; Kolkhorst; Krause;
Laubenberg; Lavender; Leach; Miller, D.; Miller, R.; Morrison; Murphy; Orr;
Otto; Paddie; Parker; Perry; Phillips; Sanford; Schaefer; Sheets; Sheffield, R.;
Simmons; Simpson; Smithee; Springer; Stickland; Taylor; Toth; Turner, E.S.;
Villalba; Villarreal; White; Zedler.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Lewis; Raney; Riddle.
STATEMENTS OF VOTE
I was shown voting no on Record No. 453. I intended to vote yes.
Cook
I was shown voting yes on Record No. 453. I intended to vote no.
J. Sheffield
I was shown voting yes on Record No. 453. I intended to vote no.
E. Thompson
I was shown voting no on Record No. 453. I intended to vote yes.
Villarreal
HB 3640 ON THIRD READING
(by Pitts)
HB 3640, A bill to be entitled An Act relating to the creation of an extension
center of the Texas State Technical College System.
HBi3640 was passed by (Record 454): 142 Yeas, 5 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Frank;
Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´ lez, M.; Gonzalez, N.;
Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez Luna;
Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal;
Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst;
Krause; Kuempel; Larson; Lavender; Leach; Lewis; Longoria; Lozano; Lucio;
Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles; Miller, D.;
Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez; Oliveira; Orr;
2228 83rd LEGISLATURE — REGULAR SESSION
Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts; Price; Raney;
Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.; Rodriguez, J.; Rose;
Sanford; Schaefer; Sheets; Sheffield, J.; Sheffield, R.; Simmons; Simpson; Smith;
Smithee; Springer; Stephenson; Strama; Taylor; Thompson, S.; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zerwas.
Nays — Flynn; Laubenberg; Stickland; Thompson, E.; Zedler.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Toth.
STATEMENT OF VOTE
I was shown voting no on Record No. 454. I intended to vote yes.
Flynn
HB 316 ON THIRD READING
(by Otto and Guillen)
HB 316, A bill to be entitled An Act relating to the pilot program
authorizing a property owner to appeal to the State Office of Administrative
Hearings regarding certain appraisal review board determinations.
HBi316 was passed by (Record 455): 148 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2229
HB 1047 ON THIRD READING
(by Sheets)
HB 1047, A bill to be entitled An Act relating to the regulation of certain
surety companies.
HB 1047 - STATEMENT OF LEGISLATIVE INTENT
REPRESENTATIVE S. THOMPSON:iiWhat is the purpose of this bill?
REPRESENTATIVE SHEETS:iiTo codify the current and past accounting
practice of surety insurance companies writing bail bonds. Currently, this
accounting practice, according to recent review by the Texas Department of
Insurance, is not clearly defined in the Texas Insurance Code. This bill provides
the needed Texas Department of Insurance clarification and removes ambiguity.
The bill requires surety insurance companies to record the amount of money they
actually receive, or are due, from a bail agent as premium in their financial
records, and requires premium taxes to be paid on these premiums. As bail
premium is fully earned when written, the bill also clarifies the long standing
accounting position of no unearned premium reserve being required to be
recorded on this business.
S. THOMPSON:iiWhy is it important to codify the past accounting practices in
HBi1047 and to continue that practice until such time as the bill passes with an
effective date?
SHEETS:iiBecause of recent ambiguities raised by the Texas Department of
Insurance, the Texas Department of Insurance has issued "permitted practice
letters" to certain surety insurance companies allowing them to follow the
accounting practices outlined in this bill. Permitted practice letters can be revoked
at any time by the TDI. This bill provides clarification and certainty to surety
insurance companies writing bail and for the Texas Department of Insurance in its
regulatory capacity. Codifying the past accounting practice in HBi1047 and
continuing the practice until such time as the bill passes with an effective date
will ensure consistency within the financial records of surety insurance
companies writing bail and consistency for the Texas Department of Insurance. It
also establishes the legislature s’ intent that surety insurance companies not be
unfairly taxed on the premiums in past years based on the application of
accounting practices not spelled out in the permitted practice letter or this bill.
REMARKS ORDERED PRINTED
Representative S.iThompson moved to print remarks between
Representative Sheets and Representative S.iThompson.
The motion prevailed.
HB 1047 was passed by (Record 456): 146 Yeas, 0 Nays, 4 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Capriglione;
Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick; Creighton;
2230 83rd LEGISLATURE — REGULAR SESSION
Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes;
Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank;
Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´ lez, M.; Gonzalez, N.;
Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez Luna;
Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal;
Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst;
Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Longoria;
Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez;
Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez;
Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts;
Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.;
Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.; Sheffield, R.;
Simmons; Simpson; Smith; Smithee; Springer; Stephenson; Stickland; Strama;
Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.;
Villalba; Villarreal; Vo; Walle; White; Workman; Wu; Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C); Canales; Miles.
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).
HB 1759 ON THIRD READING
(by Hunter, Herrero, Martinez Fischer, and Cook)
HB 1759, A bill to be entitled An Act relating to a correction, clarification,
or retraction of incorrect information published.
HBi1759 was passed by (Record 457): 145 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Dukes;
Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank;
Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´ lez, M.; Gonzalez, N.;
Gooden; Guerra; Guillen; Harless; Harper-Brown; Hernandez Luna; Herrero;
Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal; Keffer;
King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst; Krause;
Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano;
Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles;
Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez;
Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts;
Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez, J.; Rose;
Sanford; Schaefer; Sheets; Sheffield, J.; Sheffield, R.; Simmons; Simpson; Smith;
Smithee; Springer; Stephenson; Stickland; Strama; Taylor; Thompson, E.;
Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo;
Walle; White; Workman; Wu; Zedler; Zerwas.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2231
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Deshotel; Gutierrez; Rodriguez, E.
STATEMENT OF VOTE
When Record No. 457 was taken, I was in the house but away from my
desk. I would have voted yes.
Deshotel
HB 2414 ON THIRD READING
(by Button, Capriglione, Harper-Brown, Coleman, Elkins, et al.)
HB 2414, A bill to be entitled An Act relating to requirements for open
meetings held by videoconference call.
HBi2414 was passed by (Record 458): 147 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank;
Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´ lez, M.; Gonzalez, N.;
Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez Luna;
Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal;
Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst;
Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Longoria;
Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez;
Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat;
Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips;
Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Dutton.
HB 2918 ON THIRD READING
(by S. Thompson)
HB 2918, A bill to be entitled An Act relating to statutory durable powers of
attorney.
HBi2918 was passed by (Record 459): 146 Yeas, 0 Nays, 2 Present, not
voting.
2232 83rd LEGISLATURE — REGULAR SESSION
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheffield, J.; Sheffield, R.;
Simpson; Smith; Smithee; Springer; Stephenson; Stickland; Strama; Taylor;
Thompson, E.; Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.; Villalba;
Villarreal; Vo; Walle; White; Workman; Wu; Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Sheets; Simmons.
STATEMENTS OF VOTE
When Record No. 459 was taken, I was in the house but away from my
desk. I would have voted yes.
Sheets
When Record No. 459 was taken, I was in the house but away from my
desk. I would have voted yes.
Simmons
HB 3116 ON THIRD READING
(by Cook)
HB 3116, A bill to be entitled An Act relating to the recovery of uniform
statewide accounting project costs from state agencies and vendors.
HBi3116 was passed by (Record 460): 146 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank;
Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´ lez, M.; Gonzalez, N.;
Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez Luna;
Herrero; Hilderbran; Howard; Huberty; Hunter; Isaac; Johnson; Kacal; Keffer;
King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst; Krause;
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2233
Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano;
Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles;
Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez;
Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts;
Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter; Rodriguez, E.;
Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.; Sheffield, R.;
Simmons; Simpson; Smith; Smithee; Springer; Stephenson; Stickland; Strama;
Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.;
Villalba; Villarreal; Vo; Walle; White; Workman; Wu; Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Elkins; Hughes.
HB 3831 ON THIRD READING
(by Herrero and Hunter)
HB 3831, A bill to be entitled An Act relating to the designation of a portion
of State Highway 358 as the Peace Officers Memorial Highway.
HBi3831 was passed by (Record 461): 148 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
HB 3355 ON THIRD READING
(by Cook)
HB 3355, A bill to be entitled An Act relating to cable operators ’
attachments on distribution poles owned or controlled by electric cooperatives.
HBi3355 was passed by (Record 462): 148 Yeas, 0 Nays, 2 Present, not
voting.
2234 83rd LEGISLATURE — REGULAR SESSION
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
HB 2585 ON THIRD READING
(by Harper-Brown, et al.)
HB 2585, A bill to be entitled An Act relating to the reimbursement of
utilities for relocation of utility facilities following improvement or construction
of certain tolled highways.
HBi2585 was passed by (Record 463): 131 Yeas, 16 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Anderson; Ashby; Aycock; Bell; Bohac; Bonnen,
G.; Branch; Burkett; Burnam; Button; Callegari; Canales; Capriglione; Carter;
Clardy; Coleman; Collier; Cook; Cortez; Craddick; Creighton; Crownover; Dale;
Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes; Dutton; Eiland; Fallon;
Farias; Farney; Farrar; Fletcher; Flynn; Frullo; Geren; Giddings; Goldman;
Gonzales; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Herrero;
Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal; Keffer; King, K.;
King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst; Krause; Kuempel;
Larson; Laubenberg; Lavender; Leach; Lewis; Longoria; Lozano; Ma´ rquez;
Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles; Miller, D.; Miller, R.;
Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez; Oliveira; Paddie; Patrick;
Perez; Perry; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Thompson, E.; Thompson, S.; Toth; Turner, E.S.; Turner, S.; Villalba;
Villarreal; Vo; Walle; White; Workman; Wu; Zedler; Zerwas.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2235
Nays — Alvarado; Anchia; Elkins; Frank; Gonza´lez, M.; Gonzalez, N.;
Hernandez Luna; Hilderbran; Lucio; Orr; Otto; Phillips; Pickett; Strama; Taylor;
Turner, C.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Parker.
STATEMENTS OF VOTE
I was shown voting no on Record No. 463. I intended to vote yes.
Alvarado
I was shown voting no on Record No. 463. I intended to vote yes.
Anchia
I was shown voting yes on Record No. 463. I intended to vote no.
Creighton
I was shown voting yes on Record No. 463. I intended to vote no.
Dutton
I was shown voting no on Record No. 463. I intended to vote no.
Hilderbran
I was shown voting no on Record No. 463. I intended to vote yes.
Lucio
When Record No. 463 was taken, my vote failed to register. I would have
voted yes.
Parker
I was shown voting yes on Record No. 463. I intended to vote no.
Walle
HB 800 ON THIRD READING
(by Murphy, Alvarado, Hilderbran, Button, E. Rodriguez, et al.)
HB 800, A bill to be entitled An Act relating to a sales and use tax
exemption and a franchise tax credit related to certain research and development
activities.
HBi800 was passed by (Record 464): 146 Yeas, 1 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
2236 83rd LEGISLATURE — REGULAR SESSION
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips;
Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Smith; Smithee; Springer; Stephenson; Stickland;
Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.; Turner, E.S.;
Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu; Zedler; Zerwas.
Nays — Simpson.
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Orr.
STATEMENT OF VOTE
When Record No. 464 was taken, I was in the house but away from my
desk. I would have voted yes.
Orr
HB 1376 ON THIRD READING
(by Kolkhorst)
HB 1376, A bill to be entitled An Act relating to advertising by certain
facilities that provide emergency services.
HBi1376 was passed by (Record 465): 147 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel; Dukes;
Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frank;
Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´ lez, M.; Gonzalez, N.;
Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez Luna;
Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson; Kacal;
Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst;
Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Longoria;
Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon; Mene´ndez;
Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat;
Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips;
Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Ritter;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2237
Present, not voting — Mr. Speaker; Bonnen, D.(C).
Absent — Dale.
STATEMENT OF VOTE
When Record No. 465 was taken, my vote failed to register. I would have
voted yes.
Dale
(Ritter in the chair)
HB 955 ON THIRD READING
(by Isaac and Guillen)
HB 955, A bill to be entitled An Act relating to the penalty for the offense of
reckless driving.
HBi955 was passed by (Record 466): 145 Yeas, 0 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Bell; Bohac;
Bonnen, D.; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari; Canales;
Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hunter; Isaac; Johnson; Kacal;
Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick; Kolkhorst;
Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis; Longoria;
Lozano; Lucio; Ma´rquez; Martinez; McClendon; Mene´ndez; Miles; Miller, D.;
Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat; Neva´rez; Oliveira; Orr;
Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts; Price; Raney;
Ratliff; Raymond; Reynolds; Riddle; Rodriguez, E.; Rodriguez, J.; Rose;
Sanford; Schaefer; Sheets; Sheffield, J.; Sheffield, R.; Simmons; Simpson; Smith;
Smithee; Springer; Stephenson; Stickland; Strama; Taylor; Thompson, E.;
Thompson, S.; Toth; Turner, C.; Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo;
Walle; White; Workman; Wu; Zedler; Zerwas.
Present, not voting — Mr. Speaker; Ritter(C).
Absent — Aycock; Hughes; Martinez Fischer.
STATEMENT OF VOTE
When Record No. 466 was taken, I was in the house but away from my
desk. I would have voted yes.
Martinez Fischer
2238 83rd LEGISLATURE — REGULAR SESSION
HB 124 ON THIRD READING
(by Anderson, Stephenson, Price, Flynn, et al.)
HB 124, A bill to be entitled An Act relating to the addition of Salvia
divinorum and its derivatives and extracts to Penalty Group 3 of the Texas
Controlled Substances Act.
HB 124 - REMARKS
REPRESENTATIVE SIMPSON:iiI m ’ going to be brief here. We had some
discussion on this bill yesterday, but this bill will criminalize a plant, and in 1
Timothy 4:4, God said there that all things that God created are good. I think
what we should be doing here is punishing the wrongdoer, and if you use
something, and neglect it, and do something wrong then we should punish them,
but we should not be making a felony out of just possessing a plant. And some
people do use this plant as extract and things medicinally. The Harvard Medical
School stated that salvia could reduce dependence upon stimulants. The National
Institute of Mental Health s’ Psychoactive Drug Screening Program said that
salvia could be useful for a range of diseases including Alzheimer s’ , depression,
schizophrenia, chronic pain, or even AIDS or HIV. And there are some who do
use this plant religiously, and though I differ with them, I believe it s’ my duty to
protect their right to worship as they please and according to their conscience, as
long as they r’e not harming someone else.
It s’ been said that this drug causes lots of problems, it s’ hallucinogenic. The
effect is for about 10 minutes, and it s’ akin to having a daydream. And I think we
make a mistake in going ahead and making this a part of the Schedule III drugs
that are prohibited when the FDA has not added it to the list. So I urge you not to
extend the war on drugs, which has been a real failure in many ways. Thank you
for your consideration. I urge you to vote against the bill.
HBi124 was passed by (Record 467): 129 Yeas, 17 Nays, 2 Present, not
voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, D.; Bonnen, G.; Branch; Burkett; Button; Callegari; Capriglione;
Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick; Creighton;
Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Dukes; Dutton; Eiland;
Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn; Frullo; Geren; Giddings;
Goldman; Gonzales; Gonzalez, N.; Guerra; Guillen; Gutierrez; Harless;
Harper-Brown; Hernandez Luna; Herrero; Huberty; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy; Naishtat;
Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry; Phillips; Pickett; Pitts;
Price; Raney; Ratliff; Raymond; Reynolds; Riddle; Rodriguez, J.; Sheets;
Sheffield, J.; Sheffield, R.; Simmons; Smith; Smithee; Springer; Stephenson;
Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.; Turner, E.S.;
Turner, S.; Villalba; Vo; Walle; White; Workman; Zedler; Zerwas.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2239
Nays — Burnam; Canales; Deshotel; Frank; Gooden; Hilderbran; Howard;
Hughes; Miles; Neva´rez; Rodriguez, E.; Rose; Schaefer; Simpson; Stickland;
Villarreal; Wu.
Present, not voting — Mr. Speaker; Ritter(C).
Absent — Gonza´lez, M.; Sanford.
STATEMENTS OF VOTE
When Record No. 467 was taken, my vote failed to register. I would have
voted present, not voting.
M. Gonza´lez
I was shown voting no on Record No. 467. I intended to vote yes.
Hilderbran
I was shown voting no on Record No. 467. I intended to vote yes.
Miles
HB 1337 ON THIRD READING
(by D. Bonnen, Riddle, et al.)
HB 1337, A bill to be entitled An Act relating to the frequency with which
the Board of Pardons and Paroles considers the eligibility of certain inmates for
release on parole.
Amendment No. 1
Representative Toth offered the following amendment to HBi1337:
Amend HBi1337 (second reading engrossment) on third reading in
SECTION 1 of the bill, as added by Amendment No. 1 by Toth, as follows:
(1)iiOn page 1, line 5, strike "Subsections (b) and (e)" and substitute
"Subsections (b), (c), and (e)".
(2)iiOn page 1, line 9, strike "consideration" and substitute "proceedings
[consideration]".
(3)iiStrike all of the language appearing on page 1, line 16, through page 2,
line 16, and substitute the following:
(b-1)iiRegardless of whether a victim, guardian of a victim, or close relative
of a deceased victim provided a victim impact statement or indicated on the
statement that the person did or did not wish to be notified of parole proceedings
concerning an inmate, the victim, guardian, or close relative may at any time file
with the division a written statement indicating that the person:
(1)iieternally protests the release of the inmate under any circumstance
and urges the protest to be considered in any parole proceeding concerning the
inmate; and
(2)iiwith respect to notification of parole proceedings concerning the
inmate:
(A)iiwishes to be notified of any parole proceedings by the division;
(B)iiwishes to be notified only after a parole panel orders the release
of the inmate; or
2240 83rd LEGISLATURE — REGULAR SESSION
(C)iidoes not wish to be notified at any time, including after a
parole panel orders the release of the inmate.
(b-2)iiA victim, guardian of a victim, or close relative of a deceased victim
who files a statement with the division under Subsection (b-1) may at any time on
written notice to the division:
(1)iiwithdraw the person s’ protest under Subsection (b-1)(1); or
(2)iiindicate a change in the circumstances under which the person
wishes to be notified under Subsection (b-1)(2).
(c)iiIf the notice is sent to a guardian or close relative of a deceased victim,
the notice must contain a request by the division that the guardian or relative
inform other persons having an interest in the matter that the inmate is the subject
of a parole proceeding [being considered for release on parole].
(e)iiBefore an inmate is released from the institutional division on parole or
to mandatory supervision, the pardons and paroles division shall give notice of
the release to a person entitled to notification of parole proceedings concerning
[consideration for] the inmate under Subsection (a) or (b), unless:
(1)iithe person has filed with the division a written statement described
by Subsection (b-1)(2)(C) and has not withdrawn that statement; or
(2)iithe parole panel ordering the release of the inmate determines that,
nothwithstanding a written statement described by Subsection (b-1)(2)(C),
notification is necessary to the person s’ safety.
Amendment No. 1 was adopted.
HB 1337, as amended, was passed by (Record 468): 148 Yeas, 0 Nays, 2
Present, not voting.
Yeas — Allen; Alonzo; Alvarado; Anchia; Anderson; Ashby; Aycock; Bell;
Bohac; Bonnen, D.; Bonnen, G.; Branch; Burkett; Burnam; Button; Callegari;
Canales; Capriglione; Carter; Clardy; Coleman; Collier; Cook; Cortez; Craddick;
Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Davis, Y.; Deshotel;
Dukes; Dutton; Eiland; Elkins; Fallon; Farias; Farney; Farrar; Fletcher; Flynn;
Frank; Frullo; Geren; Giddings; Goldman; Gonzales; Gonza´lez, M.; Gonzalez,
N.; Gooden; Guerra; Guillen; Gutierrez; Harless; Harper-Brown; Hernandez
Luna; Herrero; Hilderbran; Howard; Huberty; Hughes; Hunter; Isaac; Johnson;
Kacal; Keffer; King, K.; King, P.; King, S.; King, T.; Kleinschmidt; Klick;
Kolkhorst; Krause; Kuempel; Larson; Laubenberg; Lavender; Leach; Lewis;
Longoria; Lozano; Lucio; Ma´rquez; Martinez; Martinez Fischer; McClendon;
Mene´ndez; Miles; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Murphy;
Naishtat; Neva´rez; Oliveira; Orr; Otto; Paddie; Parker; Patrick; Perez; Perry;
Phillips; Pickett; Pitts; Price; Raney; Ratliff; Raymond; Reynolds; Riddle;
Rodriguez, E.; Rodriguez, J.; Rose; Sanford; Schaefer; Sheets; Sheffield, J.;
Sheffield, R.; Simmons; Simpson; Smith; Smithee; Springer; Stephenson;
Stickland; Strama; Taylor; Thompson, E.; Thompson, S.; Toth; Turner, C.;
Turner, E.S.; Turner, S.; Villalba; Villarreal; Vo; Walle; White; Workman; Wu;
Zedler; Zerwas.
Present, not voting — Mr. Speaker; Ritter(C).
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2241
(Speaker in the chair)
COMMITTEE GRANTED PERMISSION TO MEET
Representative Hunter requested permission for the Committee on Calendars
to meet while the house is in session, at 3:30ip.m. today, in 3W.9, to set a
calendar.
Permission to meet was granted.
COMMITTEE MEETING ANNOUNCEMENT
The following committee meeting was announced:
Calendars, 3:30ip.m. today, 3W.9, for a formal meeting, to set a calendar.
POSTPONED BUSINESS
The following bills were laid before the house as postponed business:
CSHB 318 ON SECOND READING
(by Giddings)
CSHB 318, A bill to be entitled An Act relating to employer access to the
personal accounts of certain employees and job applicants through electronic
communication devices; establishing an unlawful employment practice.
CSHB 318 was read second time on Mayi1, an amendment was offered and
disposed of, and CSHBi318 was postponed until 4ia.m. today.
Amendment No. 2
Representative Giddings offered the following amendment to CSHBi318:
Amend CSHBi318 as follows:
1)iiIn SECTIONi1 of the bill, strike subsectioni(a) (pagei1, linesi8 through
16) and substitute the following:
Sec.i21.0605.iiREQUIRING OR REQUESTING PERSONAL ACCOUNT
ACCESS. (a)iiIn this section, "electronic communication device" includes a
computer, telephone, personal digital assistant, or similar device that uses
electronic signals to create, transmit, and receive information.
2)iiIn SECTIONi1 of the bill, strike subsectioni(b) (pagei1, linesi17 through
22) and substitute the following:
(b)iiAn employer, other than a state or local law enforcement agency,
commits an unlawful employment practice if the employer requires or requests
that an employee or applicant for employment disclose a user name, password, or
other means for accessing a personal account of the employee or applicant,
including a personal e-mail account or a social networking website account or
profile, through an electronic communication device.
Amendment No. 2 was adopted.
Amendment No. 3
Representative Giddings offered the following amendment to CSHBi318:
Amend CSHBi318 as follows:
2242 83rd LEGISLATURE — REGULAR SESSION
1)iiIn SECTIONi1 of the bill, strike subsectioni(c) (pagei1, linei23 through
pagei2, line 15) and substitute the following:
(c)iiThis section does not prohibit an employer from:
(1)iimaintaining lawful workplace policies governing:
(A)iiemployee usage of employer-provided electronic
communication devices, including employee access to personal accounts on those
devices; or
(B)iiemployee usage of personal electronic communication devices
during working hours;
(2)iimonitoring employee usage of employer-provided electronic
communication devices or employer-provided e-mail accounts; or
(3)iiobtaining information about an employee or applicant for
employment that is in the public domain or that is otherwise lawfully obtained.
2)iiIn SECTIONi1 of the bill, strike subsectioni(d) (pagei2, linesi16 through
17) and substitute the following:
(d)iiThis section does not apply to a personal social media account or an
electronic communication device of a financial services employee who uses the
account or device to conduct business of the employer that is subject to the
content, supervision, and retention requirements imposed by federal securities
laws and regulations or by a self-regulatory organization, as defined by
Sectioni3(a)(26), Securities Exchange Act of 1934 (15iU.S.C. Sectioni78c).
3)iiIn SECTIONi1 of the bill, strike subsectioni(e) through subsectioni(g)
(pagei2, linesi18 through pagei3, linei23).
Amendment No. 3 was adopted.
LEAVES OF ABSENCE GRANTED
The following members were granted leaves of absence temporarily for
today to attend a committee meeting:
Branch on motion of Raymond.
Button on motion of Raymond.
Cook on motion of Raymond.
Crownover on motion of Raymond.
S. Davis on motion of Raymond.
Eiland on motion of Bohac.
Frullo on motion of Raymond.
Geren on motion of Raymond.
Hunter on motion of Raymond.
Kuempel on motion of Raymond.
D. Miller on motion of Raymond.
CSHB 318 - (consideration continued)
(R. Sheffield in the chair)
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2243
Representative Giddings moved to postpone consideration of CSHBi318
until 3:50ip.m. today.
The motion prevailed.
CSHB 866 ON SECOND READING
(by Huberty, S. Turner, Cook, Miles, et al.)
CSHB 866, A bill to be entitled An Act relating to the administration to
public school students in certain grades of state-administered assessment
instruments.
CSHB 866 was read second time on Mayi1 and was postponed until 8ia.m.
today.
Amendment No. 1
Representative Huberty offered the following amendment to CSHBi866:
Amend CSHBi866 (house committee report) as follows:
(1)iiOn page 1, line 20, strike "and".
(2)iiStrike page 1, line 23 through page 2, line 2, and substituting the
following:
[(4)]iisocial studies, in grade eight; and
(4)i[(5)]iiscience, in grades five and eight[; and
[(6) any other subject and grade required by federal law].
Amendment No. 1 was adopted.
Amendment No. 2
Representative Huberty offered the following amendment to CSHBi866:
Amend CSHBi866 (house committee report) on pagei9, by striking
linesi10-16 and substituting the following:
SECTIONi2.ii(a) This Act takes effect on any date not later Septemberi1,
2015, on which the commissioner of education:
(1)iiobtains any necessary waiver from the application of federal law or
regulation conflicting with Sectioni39.023, Education Code, as amended by this
Act, as required by Sectioni39.023(a-9), Education Code, as added by this Act; or
(2)iireceives written notification from the United States Department of
Education that a waiver is not required.
(b)iiThis Act applies beginning with the first school year that begins after
the date on which this Act takes effect under Subsection (a) of this section.
(c)iiIf the commissioner of education obtains any necessary waiver or
receives written notification as described by Subsectioni(a) of this section, the
commissioner shall certify that the commissioner has obtained the waiver or
received notification that a waiver is not required, as applicable, and shall publish
notice of that fact in the Texas Register as soon as practicable after obtaining the
waiver or receiving notification.
Amendment No. 2 was adopted.
CSHB 866, as amended, was passed to engrossment.
2244 83rd LEGISLATURE — REGULAR SESSION
(Branch, Button, Cook, Crownover, S. Davis, Eiland, Frullo, Geren, Hunter,
Kuempel, and D. Miller now present)
CSHB 376 ON SECOND READING
(by Strama, Price, Zerwas, N. Gonzalez, Wu, et al.)
CSHB 376, A bill to be entitled An Act relating to the regulation of
child-care providers by the Texas Workforce Commission and local workforce
development boards.
CSHB 376 was read second time on Mayi1 and was postponed until 10ia.m.
today.
Representative Strama moved to postpone consideration of CSHBi376 until
4ip.m. today.
The motion prevailed.
CSHB 3447 ON SECOND READING
(by Gutierrez)
CSHB 3447, A bill to be entitled An Act relating to the establishment and
functions of certain urban land bank demonstration programs.
CSHB 3447 was read second time on Mayi1 and was postponed until
12ip.m. today.
CSHBi3447 was passed to engrossment. (Anderson, Button, Schaefer, and
Simpson recorded voting no.)
GENERAL STATE CALENDAR
HOUSE BILLS
SECOND READING
The following bills were laid before the house and read second time:
CSHB 3201 ON SECOND READING
(by Kolkhorst)
CSHB 3201, A bill to be entitled An Act relating to the practice of dentistry;
imposing surcharges and fees.
Representative Kolkhorst moved to postpone consideration of CSHBi3201
until 4ip.m. today.
The motion prevailed.
CSHB 983 ON SECOND READING
(by Elkins)
CSHB 983, A bill to be entitled An Act relating to the eligibility of
temporary election officers for unemployment compensation.
CSHBi983 was passed to engrossment.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2245
HB 985 ON SECOND READING
(by Elkins)
HB 985, A bill to be entitled An Act relating to the deadlines by which
provisional ballots must be processed and the state canvass must be conducted for
certain elections.
HBi985 was passed to engrossment.
LEAVE OF ABSENCE GRANTED
The following member was granted leave of absence for the remainder of
today to attend a meeting of the Conference Committee on SBi1:
Pitts on motion of Geren.
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).
CSHB 1010 ON SECOND READING
(by S. King)
CSHB 1010, A bill to be entitled An Act relating to the penalty for causing
certain assaultive physical contact with a child.
Representative S. King moved to postpone consideration of CSHBi1010
until 4:45ip.m. today.
The motion prevailed.
CSHB 1081 ON SECOND READING
(by M. Gonza´lez and Neva´rez)
CSHB 1081, A bill to be entitled An Act relating to a study regarding the
prohibition of dairy farming in certain areas of the state.
Amendment No. 1
Representative M. Gonza´ lez offered the following amendment to
CSHBi1081:
Amend CSHBi1081 by striking page 1, line 22, through page 2, line 1, and
renumbering the subsequent subdivisions of SECTION 1(c) of the bill
accordingly.
Amendment No. 1 was adopted.
CSHB 1081, as amended, was passed to engrossment. (Simpson recorded
voting no.)
CSHB 1324 ON SECOND READING
(by J. Davis, et al.)
CSHB 1324, A bill to be entitled An Act relating to exclusion of land from
certain water districts that fail to provide service to the land; clarifying and
limiting the authority of those districts with outstanding bonds payable from ad
valorem taxes to impose taxes on excluded land.
2246 83rd LEGISLATURE — REGULAR SESSION
CSHBi1324 was passed to engrossment.
(Ma´rquez in the chair)
CSHB 585 ON SECOND READING
(by Villarreal, Workman, and P. King)
CSHB 585, A bill to be entitled An Act relating to ad valorem taxation;
creating an offense.
Representative Otto moved to postpone consideration of CSHBi585 until
4:30ip.m. today.
The motion prevailed.
SB 1546 ON SECOND READING
(Guillen - House Sponsor)
SB 1546, A bill to be entitled An Act relating to the management and use of
the Texas preservation trust fund.
SB 1546 was considered in lieu of HB 3651.
Amendment No. 1
Representative Orr offered the following amendment to SBi1546:
Amend SBi1546 (house committee printing) on page 3 of the bill as follows:
(1)iiOn line 8, strike "increase" and substitute "make".
(2)iiOn line 11, strike "seven" and substitute "six".
Amendment No. 1 was adopted.
SB 1546, as amended, was passed to third reading.
HB 3651 - LAID ON THE TABLE SUBJECT TO CALL
Representative Guillen moved to lay HBi3651 on the table subject to call.
The motion prevailed.
POSTPONED BUSINESS
The following bills were laid before the house as postponed business:
CSHB 318 ON SECOND READING
(by Giddings)
CSHB 318, A bill to be entitled An Act relating to employer access to the
personal accounts of certain employees and job applicants through electronic
communication devices; establishing an unlawful employment practice.
CSHB 318 was read second time on Mayi1, an amendment was offered and
disposed of, and CSHBi318 was postponed until 4ia.m. today. CSHBi318 was
laid before the house as postponed business earlier today, was further amended,
and was again postponed until this time.
Amendment No. 4
Representative Kleinschmidt offered the following amendment to
CSHBi318:
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2247
Amend CSHBi318 (house committee printing), as follows:
(1)iiAdd the following appropriately lettered subsection to Section 21.0605,
Labor Code:
(iiii) This section does apply if an employer and an employee of the
employer have entered into a contractual agreement under which the employee
consents to the disclosure of a user name, password, or other means of accessing
a personal account of the employee through an electronic communication device.
Amendment No. 4 was adopted.
COMMITTEE GRANTED PERMISSION TO MEET
Representative Keffer requested permission for the Committee on Energy
Resources to meet while the house is in session, at 4:30ip.m. today, in 3W.9, to
consider HBi2590, HBi3168, and HBi3597.
Permission to meet was granted.
COMMITTEE MEETING ANNOUNCEMENT
The following committee meeting was announced:
Energy Resources, 4:30ip.m. today, 3W.9, for a formal meeting, to consider
HBi2590, HBi3168, and HBi3597.
CSHB 318 - (consideration continued)
CSHB 318 - REMARKS
REPRESENTATIVE WU:iiMembers, let me clarify a few things. First of all, we
need to make an important distinction between communications that are personal
and communications that are business. They are separate. If you go to work for a
large company, that company may give you a computer at your desk—that is the
company ’s computer. They may give you a cell phone to use for your
business—that is a company cell phone. They may give you an e-mail account to
use to conduct company business—that is the company s’ e-mail. But, even still,
you have your own personal cell phone, your own personal computer at home,
your own personal e-mail account, okay? What this bill is saying is, we are
protecting your personal phone, your personal computer, and your personal
e-mail—not the company s’ . The company always has access to their own
systems. A company always has access to their own machines and their own
devices—we don t’ need a law to do that.
What we are protecting here—what we are setting as an example today is to
make sure that our private accounts are protected. In the age of continuing
advancement in social media and technology, this is an important first step. But
even libertarian concerns aside, civil liberties concerns aside, there is an
important, let s’ say, criminal concern. One of the basic things is, Texas provides
higher evidentiary collection standards than the federal government.
Representative Toth talked about the 4thiAmendment—the 4thiAmendment of
the Constitution of the United States provides a baseline which no state may slip
under. However, each state may provide higher protections than what the
Constitution provides, and Texas is one of those states that actually provides
higher standards than what the U.S. Constitution provides. In Texas, the law says
2248 83rd LEGISLATURE — REGULAR SESSION
if an officer violates your civil rights in collecting evidence, that evidence is out.
The federal U.S. Constitution says the same thing. However, in Texas, the
protections in the state also say, look, we don t’ care if it s’ an officer or a private
individual. If a private individual, on their own, goes and digs for information
and violates someone else s’ civil rights, that evidence is also out. They may not
go dig for themselves and hand it to the police. Our Texas Constitution provides a
higher standard of protection.
This is the concern—if an employer is able to access someone s’ personal
e-mail, violating that person s’ rights, and then, they discover some stuff that is
unrelated business, that maybe links that person to a crime, if they hand that
evidence over to the police, and the police investigate, and the police finds further
evidence, all of that evidence is now out. This law tries to prevent those types of
situations from happening, saying, look, if you r’e an employer, and you think
your employee is committing a crime against you and you want to get into their
personal e-mail account, call an officer. The officer will call a DA. The DA will
draft a warrant, and they will get it correctly to make sure the evidence is properly
admissible.
REPRESENTATIVE TOTH:iiGene, you v’ e served as a district attorney, haven t’
you?
WU:iiI served as an assistant district attorney.
TOTH:iiSo, you prosecuted cases, correct?
WU:iiYes, sir.
TOTH:iiIf a corporation went on a hunting expedition and violated someone s’
4thiAmendment rights, could that potentially destroy the case?
WU:iiIt potentially could, because if a court decided that evidence was gathered
in violation of either the U.S. Constitution or the Texas Constitution, that
evidence would most likely be excluded.
TOTH:iiSo, the Villalba amendment could actually destroy a case?
WU:iiIt s’ possible.
TOTH:iiIt could actually have unintended consequences work against it?
WU:iiIf that s’ what a court decides, and I m
’ saying that there is a distinct
possibility of that.
CSHB 318, as amended, was passed to engrossment by (Record 469): 79
Yeas, 61 Nays, 2 Present, not voting.
Yeas — Allen; Alonzo; Alvarado; Anderson; Bohac; Branch; Burkett;
Canales; Coleman; Collier; Cook; Cortez; Creighton; Crownover; Davis, J.;
Davis, Y.; Deshotel; Dukes; Dutton; Eiland; Elkins; Farias; Farrar; Fletcher;
Frank; Giddings; Gonza´lez, M.; Gonzalez, N.; Guerra; Guillen; Gutierrez;
Harless; Harper-Brown; Hernandez Luna; Herrero; Howard; Huberty; Hunter;
King, S.; King, T.; Kleinschmidt; Longoria; Lozano; Lucio; Martinez; Martinez
Fischer; McClendon; Mene´ndez; Miles; Miller, R.; Moody; Mun˜oz; Naishtat;
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2249
Oliveira; Orr; Otto; Patrick; Perez; Pickett; Ratliff; Raymond; Reynolds; Riddle;
Ritter; Rodriguez, E.; Rose; Sheets; Smithee; Thompson, S.; Toth; Turner, C.;
Turner, S.; Villarreal; Vo; Walle; Workman; Wu; Zedler; Zerwas.
Nays — Anchia; Ashby; Aycock; Bell; Bonnen, D.; Bonnen, G.; Button;
Capriglione; Carter; Clardy; Craddick; Dale; Darby; Davis, S.; Fallon; Farney;
Flynn; Frullo; Geren; Goldman; Gonzales; Gooden; Hilderbran; Isaac; Kacal;
Keffer; King, K.; Klick; Kolkhorst; Krause; Kuempel; Larson; Lavender; Leach;
Lewis; Miller, D.; Murphy; Neva´rez; Paddie; Parker; Perry; Phillips; Price;
Raney; Rodriguez, J.; Sanford; Schaefer; Sheffield, J.; Sheffield, R.; Simmons;
Simpson; Smith; Springer; Stephenson; Stickland; Strama; Taylor; Thompson, E.;
Turner, E.S.; Villalba; White.
Present, not voting — Mr. Speaker; Ma´rquez(C).
Absent, Excused, Committee Meeting — Pitts.
Absent — Burnam; Callegari; Hughes; Johnson; King, P.; Laubenberg;
Morrison.
STATEMENTS OF VOTE
I was shown voting yes on Record No. 469. I intended to vote no.
Anderson
When Record No. 469 was taken, I was in the house but away from my
desk. I would have voted yes.
Burnam
I was shown voting yes on Record No. 469. I intended to vote no.
Creighton
I was shown voting no on Record No. 469. I intended to vote yes.
J. Rodriguez
CSHB 376 ON SECOND READING
(by Strama, Price, Zerwas, N. Gonzalez, Wu, et al.)
CSHB 376, A bill to be entitled An Act relating to the regulation of
child-care providers by the Texas Workforce Commission and local workforce
development boards.
CSHB 376 was read second time on Mayi1, postponed until 10ia.m. today,
and was again postponed untilithis time.
Amendment No. 1
Representative Y. Davis offered the following amendment to CSHBi376:
Amend CSHBi376, on pagei5, at the end of linei20, by inserting "A board
shall give priority to quality child care initiatives that benefit child care facilities
that are working toward Texas Rising Star certification or are Texas Rising Star
certified providers working toward a higher certification level.".
Amendment No. 1 was adopted.
2250 83rd LEGISLATURE — REGULAR SESSION
CSHB 376, as amended, was passed to engrossment. (Phillips recorded
voting no.)
CSHB 3201 ON SECOND READING
(by Kolkhorst)
CSHB 3201, A bill to be entitled An Act relating to the practice of dentistry;
imposing surcharges and fees.
CSHB 3201 was read second time earlier today and was postponed until this
time.
Amendment No. 1
Representative Kolkhorst offered the following amendment to CSHBi3201:
Amend CSHBi3201 (house committee printing) as follows:
(1)iiOn page 1, line 7, strike "$80" and substitute "$55".
(2)iiOn page 1, line 9, between "a" and "license", insert "dental".
(3)iiOn page 1, line 10, between "a" and "license", insert "dental".
(4)iiOn page 2, line 6, strike "45th" and substitute "60th".
(5)iiOn page 3, line 2, strike "may" and substitute "shall".
(6)iiOn page 8, between lines 9 and 10, add the following appropriately
numbered SECTION to the bill and renumber subsequent SECTIONS of the bill
accordingly:
SECTIONi____.iiSection 254.004(c), Occupations Code, as added by this
Act, applies only to an application for an original dental license or for renewal of
a dental license filed on or after September 1, 2013. An application filed before
September 1, 2013, is governed by the law in effect immediately before that date,
and that law is continued in effect for that purpose.
(7)iiOn page 8, line 20, strike "takes" and substitute "and Sections
254.004(c) and (d), Occupations Code, as added by this Act, take".
Amendment No. 1 was adopted.
Amendment No. 2
Representative Kolkhorst offered the following amendment to CSHBi3201:
Amend CSHBi3201 (house committee printing) by adding the following
appropriately numbered SECTIONS to the bill and renumbering subsequent
SECTIONS of the bill and references to those sections accordingly:
SECTIONi____.iiSubchapter B, Chapter 258, Occupations Code, is
amended by adding Section 258.055 to read as follows:
Sec.i258.055.iiPRACTICE OF DENTISTRY ON CERTAIN CHILDREN.
(a) The parent or guardian of a child younger than 18 years of age may be
present in the treatment room during the child s’ dental treatment or procedure,
unless the dentist determines in the dentist s’ professional judgment that the
presence of the parent or guardian in the treatment room is likely to have an
adverse effect on the treatment or the child.
(b)iiIn this section, "parent or guardian" includes a person authorized by law
to consent for the medical or dental treatment of a child younger than 18 years of
age.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2251
SECTIONi____.ii(a) The Texas State Board of Dental Examiners shall
collect the following information from dentists licensed by the board in
conjunction with the first annual license renewal of each dental license that
occurs after September 1, 2013:
(1)iithe number and type of dentists employed by the license holder, if
any;
(2)iithe name under which the license holder provides dental services
and each location at which those services are provided by that license holder;
(3)iiwhether the license holder is a participating provider under the
Medicaid program operated under Chapter 32, Human Resources Code, or the
child health plan program operated under Chapter 62, Health and Safety Code;
(4)iiwhether the license holder is employed by or contracts with a dental
group practice and, if so, the name and address of the dental group practice;
(5)iiwhether the license holder owns a dental group practice and, if so,
the name and address of the dental group practice and of each dental office at
which the dental group practice provides services to patients;
(6)iiwhether the license holder is a party to a business support services
agreement and, if so, the name and address of the management service
organization that provides services under the agreement; and
(7)iiif the license holder owns a dental group practice, whether that
practice is a party to a business support services agreement and, if so, the name
and address of the management service organization that provides services under
the agreement.
(b)iiNot later than November 1, 2014, the board shall provide a report to the
legislature on the information collected under this section and on the board s’ use
of the information in the exercise of the board s’ statutory authority to regulate the
practice of dentistry.
(c)iiThis section expires December 1, 2014.
Amendment No. 2 was adopted.
Amendment No. 3
Representative Fletcher offered the following amendment to CSHBi3201:
Amend CSHBi3201 (house committee printing) by adding the following
appropriately numbered SECTION to the bill and renumbering subsequent
SECTIONS of the bill and references to those sections accordingly:
SECTIONi____.iiSection 254.018, Occupations Code, is amended to read
as follows:
Sec.i254.018.ii[EXPERT] TESTIMONY. A member of the board may not
express an oral or written opinion or serve as an expert witness in a suit involving
a health care liability claim against a person licensed or registered under this
subtitle [dentist] for injury to or death of a patient or for a violation of the
standard of care or the commission of malpractice [unless the member receives
approval from the board or an executive committee of the board to serve as an
expert witness].
2252 83rd LEGISLATURE — REGULAR SESSION
Amendment No. 3 was adopted. (The vote was reconsidered later today,
and Amendment No. 3 was amended and was adopted, as amended.)
CSHB 3201, as amended, was passed to engrossment. (Springer recorded
voting no.) (The vote was reconsidered later today, and CSHB 3201 was further
amended and was passed to engrossment, as amended.)
CSHB 205 ON SECOND READING
(by McClendon, Kolkhorst, Burkett, J. Davis, Rose, et al.)
CSHB 205, A bill to be entitled An Act relating to the allocation of
outpatient mental health services and beds in certain mental health facilities and
the commitment of certain persons to receive mental health services.
Amendment No. 1
Representative Mene´ndez offered the following amendment to CSHBi205:
Amend CSHBi205 (house committee printing) by adding the following
appropriately numbered SECTIONS to the bill and renumbering subsequent
SECTIONS of the bill accordingly:
SECTIONi____.iiSubchapter B, Chapter 32, Human Resources Code, is
amended by adding Section 32.0264 to read as follows:
Sec.i32.0264.iiSUSPENSION, TERMINATION, AND AUTOMATIC
REINSTATEMENT OF ELIGIBILITY FOR CERTAIN PERSONS CONFINED
IN COUNTY JAILS. (a)iiIn this section, "county jail" means a facility operated
by or for a county for the confinement of persons accused or convicted of an
offense.
(b)iiIf a person with mental illness is confined in a county jail, the
department shall suspend the person s’ eligibility for medical assistance during the
period the person is confined in the county jail if:
(1)iithe person has been charged with but not convicted of an offense;
and
(2)iithe department has reason to believe that the person:
(A)iiafter release or discharge from the county jail, will be admitted
to a state hospital for emergency detention under Chapter 573, Health and Safety
Code, or ordered by a court under Chapter 574, Health and Safety Code, to
receive inpatient mental health services at a state hospital; or
(B)iiwill be committed to a state hospital to attain competency to
stand trial under Chapter 46B, Code of Criminal Procedure, or to receive
inpatient mental health services following an acquittal by reason of insanity under
Chapter 46C, Code of Criminal Procedure.
(c)iiIf a person with mental illness is confined in a county jail, the
department shall, as appropriate, terminate the person s’ eligibility for medical
assistance or suspend the person s’ eligibility during the period the person is
confined in the county jail if:
(1)iithe person has been convicted of an offense; and
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2253
(2)iithe department has reason to believe that the person, after release or
discharge from the county jail, will be admitted to a state hospital for emergency
detention under Chapter 573, Health and Safety Code, or ordered by a court
under Chapter 574, Health and Safety Code, to receive inpatient mental health
services at a state hospital.
(d)iiNot later than 48 hours after the department is notified of the release
from a county jail of a person whose eligibility for medical assistance has been
suspended under this section, the department shall reinstate the person s’
eligibility, provided the person s’ eligibility certification period has not elapsed.
Following the reinstatement, the person remains eligible until the expiration of
the period for which the person was certified as eligible.
SECTIONi____.iiSubchapter C, Chapter 351, Local Government Code, is
amended by adding Section 351.048 to read as follows:
Sec.i351.048.iiNOTICE TO CERTAIN GOVERNMENTAL ENTITIES. (a)
The sheriff of a county may notify the Health and Human Services Commission:
(1)iion the confinement in the county jail of a person with mental illness
who:
(A)iiis receiving medical assistance benefits under Chapter 32,
Human Resources Code; and
(B)iithe sheriff has reason to believe would qualify for a suspension
of those benefits under Section 32.0264(b), Human Resources Code; and
(2)iion the conviction of a prisoner with mental illness who:
(A)iiimmediately before the prisoner s’ confinement in the county
jail, was receiving medical assistance benefits; and
(B)iithe sheriff has reason to believe would qualify for a suspension
of those benefits under Section 32.0264(c), Human Resources Code.
(b)iiIf the sheriff of a county chooses to provide the notices described by
Subsection (a), the sheriff shall provide the notices electronically or by other
appropriate means as soon as possible and not later than the 30th day after the
date of the person s’ confinement or prisoner s’ conviction, as applicable.
(c)iiThe sheriff of a county may notify:
(1)iithe United States Social Security Administration of the release or
discharge of a prisoner with mental illness:
(A)iiwho immediately before the prisoner s’ confinement in the
county jail, was receiving:
(i)iiSupplemental Security Income (SSI) benefits under 42
U.S.C. Section 1381 et seq.; or
(ii)iiSocial Security Disability Insurance (SSDI) benefits under
42 U.S.C. Section 401 et seq.; and
(B)iiwho:
(i)iihas been committed to a state hospital to attain competency
to stand trial under Chapter 46B, Code of Criminal Procedure, or to receive
inpatient mental health services following an acquittal by reason of insanity under
Chapter 46C, Code of Criminal Procedure; or
2254 83rd LEGISLATURE — REGULAR SESSION
(ii)iithe sheriff has reason to believe will be admitted to a state
hospital for emergency detention under Chapter 573, Health and Safety Code, or
ordered by a court under Chapter 574, Health and Safety Code, to receive
inpatient mental health services at a state hospital; and
(2)iithe Health and Human Services Commission of the release or
discharge of a prisoner with mental illness who, immediately before the
prisoner s’ confinement in the county jail, was receiving medical assistance
benefits and who:
(A)iihas been committed to a state hospital to attain competency to
stand trial under Chapter 46B, Code of Criminal Procedure, or to receive
inpatient mental health services following an acquittal by reason of insanity under
Chapter 46C, Code of Criminal Procedure; or
(B)iithe sheriff has reason to believe will be admitted to a state
hospital for emergency detention under Chapter 573, Health and Safety Code, or
ordered by a court under Chapter 574, Health and Safety Code, to receive
inpatient mental health services at a state hospital.
(d)iiIf the sheriff of a county chooses to provide the notices described by
Subsection (c), the sheriff shall provide the notices electronically or by other
appropriate means not later than 48 hours after the prisoner s’ release or discharge
from custody.
(e)iiIf the sheriff of a county chooses to provide the notices described by
Subsection (c), at the time of the prisoner s’ release or discharge, the sheriff shall
provide the prisoner with a written copy of each applicable notice and a phone
number at which the prisoner may contact the Health and Human Services
Commission regarding confirmation of or assistance relating to reinstatement of
the person s’ eligibility for medical assistance benefits, if applicable.
(f)iiThe Health and Human Services Commission shall establish a means by
which the sheriff of a county, or an employee of the county or sheriff, may
determine whether a person confined in the county jail is or was, as appropriate,
receiving medical assistance benefits under Chapter 32, Human Resources Code,
for purposes of this section.
(g)iiThe county or sheriff, or an employee of the county or sheriff, is not
liable in a civil action for damages resulting from a failure to comply with this
section.
SECTIONi____.iiSections 32.0264(a)-(c), Human Resources Code, and
Section 351.048(a), Local Government Code, as added by this Act, apply to a
person whose period of confinement in a county jail begins on or after the
effective date of this Act, regardless of the date the person was determined
eligible for medical assistance under Chapter 32, Human Resources Code.
SECTIONi____.iiSection 32.0264(d), Human Resources Code, and Section
351.048(c), Local Government Code, as added by this Act, apply to the release or
discharge of a prisoner from a county jail that occurs on or after the effective date
of this Act, regardless of the date the prisoner was initially confined in the county
jail.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2255
SECTIONi____.iiIf before implementing any provision of this Act a state
agency determines that a waiver or authorization from a federal agency is
necessary for implementation of that provision, the agency affected by the
provision shall request the waiver or authorization and may delay implementing
that provision until the waiver or authorization is granted.
Amendment No. 1 failed of adoption.
CSHB 205 was passed to engrossment.
CSHB 439 ON SECOND READING
(by Dutton)
CSHB 439, A bill to be entitled An Act relating to the restoration of certain
rights to a criminal defendant.
Amendment No. 1
Representative Dutton offered the following amendment to CSHBi439:
Amend CSHBi439 (house committee printing) on page 1 by striking lines
22 through 24 and substituting the following:
(i)iifor which an individual is required to register as a sex
offender under Chapter 62;
(ii)iiinvolving violence or the threat of violence;
(iii)iiinvolving drugs; or
(iv)iiinvolving firearms and punishable as a felony.
Amendment No. 1 was adopted.
CSHB 439, as amended, was passed to engrossment. (Anderson, Button,
Flynn, Phillips, Springer, E. S. Turner, and Zedler recorded voting no.)
REMARKS ORDERED PRINTED
Representative Wu moved to print his remarks on CSHBi318.
The motion prevailed.
COMMITTEE GRANTED PERMISSION TO MEET
Representative Hilderbran requested permission for the Committee on Ways
and Means to meet while the house is in session, at 5ip.m. today, in 3W.15, to
consider HBi3571 and pending business.
Permission to meet was granted.
COMMITTEE MEETING ANNOUNCEMENT
The following committee meeting was announced:
Ways and Means, 5 p.m. today, 3W.15, for a formal meeting, to consider
HBi3571 and pending business.
CSHB 585 ON SECOND READING
(by Villarreal, Workman, and P. King)
CSHB 585, A bill to be entitled An Act relating to ad valorem taxation;
creating an offense.
2256 83rd LEGISLATURE — REGULAR SESSION
CSHB 585 was read second time earlier today and was postponed until this
time.
Amendment No. 1
Representative Villarreal offered the following amendment to CSHBi585:
Amend CSHBi585 (house committee printing) as follows:
(1)iiOn page 6, line 12, strike "Subsections (d-1) and (f)" and substitute
"Subsections (d), (d-1), and (f)".
(2)iiOn page 6, between lines 13 and 14, insert the following:
(d)iiExcept as provided by Subsection (d-1), members of the board are
independent contractors of the appraisal district appointed by resolution of a
majority of the appraisal district board of directors.iiA vacancy on the board is
filled in the same manner for the unexpired portion of the term.
(3)iiOn page 6, line 17, between "are" and "appointed", insert "independent
contractors of the appraisal district".
(4)iiOn page 7, strike lines 1-12 and substitute the following:
(f)iiA member of the board serves at the pleasure [may be removed from the
board by a majority vote] of the appraisal district board of directors[,] or [by] the
local administrative district judge or the judge s’ designee, as applicable, that
appointed the member.ii[Grounds for removal are:
[(1)iia violation of Section 6.412, 6.413, 41.66(f), or 41.69; or
[(2)iigood cause relating to the attendance of members at called
meetings of the board as established by written policy adopted by a majority of
the appraisal district board of directors.]
Amendment No. 1 was adopted.
Amendment No. 2
Representative Otto offered the following amendment to CSHBi585:
Amend CSHBi585 (house committee printing) by adding the following
appropriately numbered SECTION to the bill and renumbering the subsequent
SECTIONS of the bill accordingly:
SECTIONi____.ii(a) Section 41.43, Tax Code, is amended by amending
Subsection (a) and adding Subsections (a-3), (a-4), and (a-5) to read as follows:
(a)iiExcept as provided by Subsections (a-1), (a-3), and (d), in a protest
authorized by Section 41.41(a)(1) or (2), the appraisal district has the burden of
establishing the value of the property by a preponderance of the evidence
presented at the hearing. If the appraisal district fails to meet that standard, the
protest shall be determined in favor of the property owner.
(a-3)iiIn a protest authorized by Section 41.41(a)(1) or (2), the appraisal
district has the burden of establishing the value of the property by clear and
convincing evidence presented at the hearing if:
(1)iithe appraised value of the property was lowered under this subtitle
in the preceding tax year;
(2)iithe appraised value of the property in the preceding tax year was not
established as a result of a written agreement between the property owner or the
owner s’ agent and the appraisal district under Section 1.111(e); and
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2257
(3)iinot later than the 14th day before the date of the first day of the
hearing, the property owner files with the appraisal review board and delivers to
the chief appraiser:
(A)iiinformation, such as income and expense statements or
information regarding comparable sales, that is sufficient to allow for a
determination of the appraised or market value of the property if the protest is
authorized by Section 41.41(a)(1); or
(B)iiinformation that is sufficient to allow for a determination of
whether the property was appraised unequally if the protest is authorized by
Section 41.41(a)(2).
(a-4)iiIf the appraisal district has the burden of establishing the value of
property by clear and convincing evidence presented at the hearing on a protest as
provided by Subsection (a-3) and the appraisal district fails to meet that standard,
the protest shall be determined in favor of the property owner.
(a-5)iiSubsection (a-3)(3) does not impose a duty on a property owner to
provide any information in a protest authorized by Section 41.41(a)(1) or (2).
That subdivision is merely a condition to the applicability of the standard of
evidence provided by Subsection (a-3).
(b)iiThe change in law made by this section applies only to a protest filed
with an appraisal review board on or after the effective date of this section. A
protest filed with an appraisal review board before the effective date of this
section is covered by the law in effect at the time the protest was filed, and the
former law is continued in effect for that purpose.
(c)iiNotwithstanding any other provision of this Act, this section takes effect
September 1, 2013.
Amendment No. 2 was adopted.
CSHB 585, as amended, was passed to engrossment. (Phillips recorded
voting no.)
GENERAL STATE CALENDAR
(consideration continued)
CSHB 658 ON SECOND READING
(by Sheets and Krause)
CSHB 658, A bill to be entitled An Act relating to postjudgment interest on
damages subject to Medicare subrogation.
CSHBi658 was passed to engrossment.
CSHB 1134 ON SECOND READING
(by Darby)
CSHB 1134, A bill to be entitled An Act relating to performance and
payment security for certain comprehensive development agreements.
CSHBi1134 was passed to engrossment.
2258 83rd LEGISLATURE — REGULAR SESSION
SB 567 ON SECOND READING
(Geren - House Sponsor)
SB 567, A bill to be entitled An Act relating to rates for water service, to the
transfer of functions relating to the economic regulation of water and sewer
service from the Texas Commission on Environmental Quality to the Public
Utility Commission of Texas, and to the duties of the Office of Public Utility
Counsel regarding the economic regulation of water and sewer service.
SB 567 was considered in lieu of HB 1307.
Amendment No. 1
Representative Geren offered the following amendment to SBi567:
Amend SBi567 as follows:
(1)iiOn page 62, line 18, between "unless the" and "commission has", insert
"utility".
(2)iiStrike "Sections 11.041 and 12.013" and substitute "Section 12.013" in
the following places:
(A)iipage 110, lines 19 and 20;
(B)iipage 111, line 20;
(C)iipage 111, line 25;
(D)iipage 112, line 12; and
(E)iipage 114, line 3.
(3)iiAdd the following appropriately numbered SECTIONS to the bill and
renumber subsequent SECTIONS accordingly:
SECTIONi____.iiSection 8803.151(1), Special District Local Laws Code, is
amended to read as follows:
(1)ii"Commission" means the Public Utility Commission of Texas
[Commission on Environmental Quality].
SECTIONi____.iiSection 8808.151(1), Special District Local Laws Code, is
amended to read as follows:
(1)ii"Commission" means the Public Utility Commission of Texas
[Commission on Environmental Quality].
Amendment No. 1 was adopted.
Amendment No. 2
Representative Dutton offered the following amendment to SBi567:
Amend SBi567 by adding the following appropriately numbered SECTION
to the bill and renumbering subsequent SECTIONS accordingly:
SECTIONi____.iiSubchapter G, Chapter 13, Water Code, is amended by
adding Section 13.2552 to read as follows:
S e c . i 1 3 . 2 5 5 2 . i i S I N G L E C E RT I F I C AT I O N I N P O P U L O U S
MUNICIPALITIES. (a) This section applies only to:
(1)iia retail public utility that:
(A)iiprovides service in a municipality with a population of more
than two million;
(B)iiprovides service in more than 50 counties in this state; and
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2259
(C)iiobtains water from more than 500 source wells in this state;
and
(2)iia municipality with a population of more than two million.
(b)iiNotwithstanding any other law, a municipality and a retail public utility
that provides water or sewer service in the municipality under a certificate of
convenience and necessity shall agree in writing that the utility s’ service area in
the municipality shall be served only by a municipally owned utility and that the
municipality shall purchase from the retail public utility:
(1)iithe certificate of convenience and necessity for the area in the
municipality;
(2)iithe property of the retail public utility; and
(3)iiany property of the retail public utility that is rendered useless or
valueless as a result of the transfer of the certificate.
(c)iiThe minimum monetary compensation the municipality shall pay shall
be determined in the manner provided by Sections 13.254(e)-(g-1). The
municipality shall pay the compensation over a period of 50 years.
(d)iiThe municipality, before providing service to the area, shall file an
application with the commission to grant single certification to the municipally
owned utility.
(e)iiThe executed agreement described by Subsection (b) shall be filed with
the commission, and the commission, on receipt of the agreement and the
application described by Subsection (d), shall:
(1)iiincorporate the terms of the agreement into the respective
certificates of convenience and necessity of the parties to the agreement; and
(2)iigrant single certification to the municipality.
(f)iiThe commission shall deny an application for single certification by a
municipality that fails to demonstrate compliance with the commission s’
minimum requirements for public drinking water systems.
Amendment No. 2 was withdrawn.
SB 567, as amended, was passed to third reading.
HB 1307 - LAID ON THE TABLE SUBJECT TO CALL
Representative Geren moved to lay HBi1307 on the table subject to call.
The motion prevailed.
HB 2020 ON SECOND READING
(by Crownover, Alvarado, Lucio, Harless, and Callegari)
HB 2020, A bill to be entitled An Act relating to the adoption of wellness
policies and programs by state agencies.
Amendment No. 1
Representative S. Davis offered the following amendment to HBi2020:
Amend HBi2020 (house committee report) as follows:
(1)iiOn page 1, line 16, between "POLICIES." and "A state", insert "(a)".
2260 83rd LEGISLATURE — REGULAR SESSION
(2)iiOn page 2, line 8, between "services" and the underlined semicolon,
insert "in accordance with Subtitles B and J, Title 3, Occupations Code, including
the requirements regarding delegation of certain medical acts under Chapter 157,
Occupations Code".
(3)iiOn page 2, between lines 10 and 11, insert the following:
(b)iiIn addition to the requirements of Sections 2155.074, 2155.075, and
2254.003, in awarding a contract for on-site clinic or pharmacy services as
provided by Subsection (a)(5), a state agency may consider:
(1)iiwhether the on-site clinic services will be provided by a
physician-led organization that has its principal place of business in this state; or
(2)iiwhether the on-site pharmacy services will be provided by a
business that has its principal place of business in this state.
Amendment No. 1 was adopted.
HB 2020, as amended, was passed to engrossment. (Phillips, Springer, and
E. S. Turner recorded voting no.)
CSHB 2294 ON SECOND READING
(by Kuempel and Lucio)
CSHB 2294, A bill to be entitled An Act relating to an exemption from air
conditioning and refrigeration contracting regulation for installation of a
thermostat.
CSHBi2294 was passed to engrossment.
CSHB 2962 ON SECOND READING
(by Harper-Brown)
CSHB 2962, A bill to be entitled An Act relating to the use of a credit or
charge card by certain state agencies to make certain purchases.
Amendment No. 1
Representatives Martinez Fischer, Flynn, Alvarado, and Neva´rez offered the
following amendment to CSHBi2962:
Amend CSHBi2962 (house committee printing) as follows:
(1)iiOn page 1, line 13, strike "and".
(2)iiOn page 1, between lines 13 and 14, insert the following:
(2)iirequire a state agency that uses a credit or charge card to make a
purchase to post on the agency s’ Internet website a list of all purchases made with
the credit or charge card, provided that the agency is not required to post any
confidential information; and
(3)iiOn page 1, line 14, strike "(2)" and substitute "(3)".
(4)iiOn page 2, line 10, strike "and".
(5)iiOn page 2, between lines 10 and 11, insert the following:
(2)iithe agency shall post on the agency s’ Internet website a list of all
purchases made with the credit or charge card, provided that the agency is not
required to post any confidential information; and
(6)iiOn page 2, line 11, strike "(2)" and substitute "(3)".
(7)iiOn page 3, line 1, strike "and".
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2261
(8)iiOn page 3, between lines 1 and 2, insert the following:
(2)iithe agency shall post on the agency s’ Internet website a list of all
purchases made with the credit or charge card, provided that the agency is not
required to post any confidential information; and
(9)iiOn page 3, line 2, strike "(2)" and substitute "(3)".
Amendment No. 1 was adopted.
Amendment No. 2
Representative Otto offered the following amendment to CSHBi2962:
Amend CSHBi2962 (house committee printing) by adding the following the
following appropriately numbered SECTION to the bill and renumbering
subsequent SECTIONS of the bill accordingly:
SECTIONi____.iiSubchapter B, Chapter 403, Government Code, is
amended by adding Section 403.0233 to read as follows:
Sec.i403.0233.iiCREDIT OR DEBIT CARD AGREEMENT
BENEFITTING INSTITUTIONS OF HIGHER EDUCATION. (a) In this
section, "institution of higher education" has the meaning assigned by Section
61.003, Education Code.
(b)iiA rule adopted by the comptroller under Section 403.023 may not
prohibit an institution of higher education that enters into an agreement with a
credit or debit card issuer under which the issuer is required to pay the institution
an amount of money based on the use of the credit or debit card by a cardholder
from retaining any money paid by the issuer to the institution under the
agreement.
Amendment No. 2 was withdrawn.
CSHB 2962, as amended, was passed to engrossment. (Schaefer and
Simpson recorded voting no.)
CSHB 3460 ON SECOND READING
(by Eiland)
CSHB 3460, A bill to be entitled An Act relating to the requirement that
certain information be reported to the Texas Department of Insurance and the
confidentiality of that information.
CSHBi3460 was passed to engrossment. (Simpson recorded voting no.)
HB 194 ON SECOND READING
(by Farias, Ratliff, Mene´ndez, Guerra, Collier, et al.)
HB 194, A bill to be entitled An Act relating to considering ownership
interests of certain disabled veterans in determining whether a business is a
historically underutilized business for purposes of state contracting.
Representative Farias moved to postpone consideration of HBi194 until
2ip.m. Monday, May 6.
The motion prevailed.
2262 83rd LEGISLATURE — REGULAR SESSION
CSHB 3105 ON SECOND READING
(by Morrison)
CSHB 3105, A bill to be entitled An Act relating to availability of certain
benefits under individual accident and health insurance policies.
CSHBi3105 was passed to engrossment.
CSHB 3158 ON SECOND READING
(by Zerwas, Johnson, and Rose)
CSHB 3158, A bill to be entitled An Act relating to Medicaid managed care
pilot programs for contracts with provider-directed managed care organizations,
including organizations that delegate to health care collaboratives, and to the
establishment of those collaboratives.
Representative Rose moved to postpone consideration of CSHBi3158 until
8ia.m. tomorrow.
The motion prevailed.
HB 3436 ON SECOND READING
(by Cook)
HB 3436, A bill to be entitled An Act relating to formal action of
responsible governmental entities on certain proposals or bids for certain projects.
Amendment No. 1
Representative Cook offered the following amendment to HBi3436:
Amend HBi3436 (house committee report) as follows:
(1)iiOn page 1, line 5, between "Government Code," and "is", insert "as
added by Chapteri1334 (SBi1048), Acts of the 82nd Legislature, Regular
Session, 2011,".
(2)iiOn page 1, line 9, strike "Septemberi1, 2013" and substitute
"Septemberi1, 2015".
(3)iiOn page 1, line 10, strike "Septemberi2, 2013" and substitute
"Septemberi2, 2015".
Amendment No. 1 was adopted.
Amendment No. 2
Representative Cook offered the following amendment to HBi3436:
Amend HBi3436 (house committee report) on pagei1, linei5, between
"Government Code," and "is", by inserting "as added by Chapteri1334
(SBi1048), Acts of the 82ndiLegislature, Regular Session, 2011,".
Amendment No. 2 was adopted.
HB 3436, as amended, was passed to engrossment.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2263
CSHB 3572 ON SECOND READING
(by Hilderbran, Eiland, Otto, Bohac, Alvarado, et al.)
CSHB 3572, A bill to be entitled An Act relating to the administration,
collection, and enforcement of taxes on mixed beverages; imposing a tax on sales
of mixed beverages; decreasing the rate of the current tax on mixed beverages.
Representative Hilderbran moved to postpone consideration of CSHBi3572
until the end of today s’ calendar.
The motion prevailed.
CSHB 3556 ON SECOND READING
(by Kolkhorst and Raymond)
CSHB 3556, A bill to be entitled An Act relating to the licensing and
regulation of emergency medical services providers and a moratorium on the
issuance of emergency medical services provider licenses.
Amendment No. 1
Representative Raymond offered the following amendment to CSHBi3556:
Amend CSHBi3556 (house committee report) by adding the following
appropriately numbered SECTIONS to the bill and renumbering subsequent
SECTIONS of the bill accordingly:
SECTIONi____.iiSection 773.0571, Health and Safety Code, is amended to
read as follows:
Sec.i773.0571.iiREQUIREMENTS FOR PROVIDER LICENSE. The
department shall issue to an emergency medical services provider applicant a
license that is valid for two years if the department is satisfied that:
(1)iithe applicant [emergency medical services provider] has adequate
staff to meet the staffing standards prescribed by this chapter and the rules
adopted under this chapter;
(2)iieach emergency medical services vehicle is adequately constructed,
equipped, maintained, and operated to render basic or advanced life support
services safely and efficiently;
(3)iithe applicant [emergency medical services provider] offers safe and
efficient services for emergency prehospital care and transportation of patients;
[and]
(4)iithe applicant:
(A)iipossesses sufficient professional experience and qualifications
to provide emergency medical services; and
(B)iihas not been excluded from participation in the state Medicaid
program;
(5)iithe applicant holds a letter of approval issued under Section
773.0573 by the governing body of the municipality or the commissioners court
of the county in which the applicant is located and is applying to provide
emergency medical services, as applicable; and
(6)iithe applicant [emergency medical services provider] complies with
the rules adopted [by the board] under this chapter.
2264 83rd LEGISLATURE — REGULAR SESSION
SECTIONi____.iiSubchapter C, Chapter 773, Health and Safety Code, is
amended by adding Section 773.0573 to read as follows:
S e c . i 7 7 3 . 0 5 7 3 . i i L E T T E R O F A P P R O VA L F R O M L O C A L
GOVERNMENTAL ENTITY. (a) An emergency medical services provider
applicant must obtain a letter of approval from:
(1)iithe governing body of the municipality in which the applicant is
located and is applying to provide emergency medical services; or
(2)iiif the applicant is not located in a municipality, the commissioners
court of the county in which the applicant is located and is applying to provide
emergency medical services.
(b)iiA governing body of a municipality or a commissioners court of a
county may issue a letter of approval to an emergency medical services provider
applicant who is applying to provide emergency medical services in the
municipality or county only if the governing body or commissioners court
determines that:
(1)iithe addition of another licensed emergency medical services
provider will not interfere with or adversely affect the provision of emergency
medical services by the licensed emergency medical services providers operating
in the municipality or county;
(2)iithe addition of another licensed emergency medical services
provider will remedy an existing provider shortage that cannot be resolved
through the use of the licensed emergency medical services providers operating
in the municipality or county; and
(3)iithe addition of another licensed emergency medical services
provider will not cause an oversupply of licensed emergency medical services
providers in the municipality or county.
(c)iiAn emergency medical services provider is prohibited from expanding
operations to or stationing any emergency medical services vehicles in a
municipality or county other than the municipality or county from which the
provider obtained the letter of approval under this section until after the second
anniversary of the date the provider s’ initial license was issued, unless the
expansion or stationing occurs in connection with:
(1)iia contract awarded by another municipality or county for the
provision of emergency medical services;
(2)iian emergency response made in connection with an existing mutual
aid agreement; or
(3)iian activation of a statewide emergency or disaster response by the
department.
(d)iiThis section does not apply to:
(1)iirenewal of an emergency medical services provider license; or
(2)iia municipality, county, emergency services district, hospital, or
emergency medical services volunteer provider organization in this state that
applies for an emergency medical services provider license.
SECTIONi____.iiSection 773.0571, as amended by this Act, and Section
773.0573, as added by this Act, apply only to an application for approval of an
emergency medical services provider license submitted to the Department of
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2265
State Health Services on or after the effective date of this Act. An application
submitted before the effective date of this Act is governed by the law in effect
immediately before the effective date of this Act, and that law is continued in
effect for that purpose.
Amendment No. 1 was adopted.
CSHB 3556, as amended, was passed to engrossment. (Schaefer and
Springer recorded voting no.)
COMMITTEE GRANTED PERMISSION TO MEET
Representative Hunter requested permission for the Committee on Calendars
to meet while the house is in session, at 5:45ip.m. today, in 3W.15, to set a
calendar.
Permission to meet was granted.
COMMITTEE MEETING ANNOUNCEMENT
The following committee meeting was announced:
Calendars, 5:45 p.m. today, 3W.15, for a formal meeting, to set a calendar.
REMARKS ORDERED PRINTED
Representative Simpson moved to print his remarks on HBi124.
The motion prevailed.
CSHB 3238 ON SECOND READING
(by McClendon, Naishtat, Coleman, J. Davis, Zerwas, et al.)
CSHB 3238, A bill to be entitled An Act relating to disease control pilot
programs to reduce the risk of certain communicable diseases; authorizing a fee.
Amendment No. 1
Representative Y. Davis offered the following amendment to CSHBi3238:
Amend CSHBi3238 (house committee printing) as follows:
(1)iiOn page 3, insert the following between lines 13 and 14:
(4)iiprovide for an HIV test as part of the participant s’ annual routine
medical screening.
Amendment No. 1 was adopted.
LEAVES OF ABSENCE GRANTED
The following members were granted leaves of absence temporarily for
today to attend a committee meeting:
Branch on motion of T. King.
Button on motion of T. King.
Cook on motion of T. King.
Crownover on motion of T. King.
S. Davis on motion of T. King.
2266 83rd LEGISLATURE — REGULAR SESSION
Eiland on motion of T. King.
Frullo on motion of T. King.
Hunter on motion of T. King.
Kuempel on motion of T. King.
D. Miller on motion of T. King.
The following members were granted leaves of absence for the remainder of
today to attend a committee meeting:
Alvarado on motion of T. King.
Geren on motion of T. King.
CSHB 3238 - (consideration continued)
CSHB 3238, as amended, failed to pass to engrossment by (Record 470): 58
Yeas, 71 Nays, 2 Present, not voting. (The vote was later reconsidered on Friday,
May 3, and CSHBi3238 was further amended and failed to pass to engrossment
by Record No.i502.)
Yeas — Allen; Alonzo; Anchia; Burnam; Canales; Coleman; Collier;
Cortez; Davis, J.; Davis, Y.; Deshotel; Dukes; Dutton; Farias; Farrar; Giddings;
Gonza´lez, M.; Gonzalez, N.; Guerra; Gutierrez; Hernandez Luna; Herrero;
Howard; Huberty; Johnson; King, K.; King, S.; King, T.; Longoria; Lucio;
Martinez; Martinez Fischer; McClendon; Mene´ndez; Miles; Moody; Mun˜oz;
Murphy; Naishtat; Neva´rez; Oliveira; Perez; Pickett; Price; Raney; Ratliff;
Reynolds; Rodriguez, E.; Rodriguez, J.; Rose; Smith; Strama; Turner, C.; Turner,
S.; Villarreal; Vo; Walle; Wu.
Nays — Anderson; Ashby; Aycock; Bell; Bohac; Bonnen, D.; Bonnen, G.;
Burkett; Carter; Clardy; Craddick; Creighton; Dale; Darby; Elkins; Fallon;
Farney; Fletcher; Flynn; Frank; Goldman; Gonzales; Gooden; Guillen; Harless;
Harper-Brown; Hilderbran; Hughes; Isaac; Kacal; Keffer; King, P.; Kleinschmidt;
Klick; Kolkhorst; Krause; Laubenberg; Lavender; Leach; Lewis; Lozano; Miller,
R.; Morrison; Orr; Otto; Paddie; Parker; Patrick; Perry; Riddle; Ritter; Sanford;
Schaefer; Sheets; Sheffield, J.; Sheffield, R.; Simmons; Simpson; Smithee;
Springer; Stephenson; Stickland; Taylor; Thompson, E.; Thompson, S.; Toth;
Turner, E.S.; Villalba; White; Workman; Zedler.
Present, not voting — Mr. Speaker; Ma´rquez(C).
Absent, Excused, Committee Meeting — Alvarado; Branch; Button; Cook;
Crownover; Davis, S.; Eiland; Frullo; Geren; Hunter; Kuempel; Miller, D.; Pitts.
Absent — Callegari; Capriglione; Larson; Phillips; Raymond; Zerwas.
STATEMENTS OF VOTE
When Record No. 470 was taken, I was excused to attend a meeting of the
Committee on Calendars. I would have voted no.
Button
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2267
When Record No. 470 was taken, my vote failed to register. I would have
voted no.
Capriglione
I was shown voting yes on Record No. 470. I intended to vote no.
Mun˜oz
When Record No. 470 was taken, my vote failed to register. I would have
voted no.
Phillips
I was shown voting yes on Record No. 470. I intended to vote no.
Ratliff
CSSB 1251 ON SECOND READING
(Villarreal - House Sponsor)
CSSB 1251, A bill to be entitled An Act relating to authorized charges and
terms for certain consumer loans.
CSSB 1251 was considered in lieu of HB 2315.
Representative Villarreal moved to postpone consideration of CSSBi1251
until 10ia.m. Monday, Mayi6.
The motion prevailed.
HB 2315 - LAID ON THE TABLE SUBJECT TO CALL
Representative Villarreal moved to lay HBi2315 on the table subject to call.
The motion prevailed.
POSTPONED BUSINESS
The following bills were laid before the house as postponed business:
(Button, S. Davis, Eiland, Kuempel, and D. Miller now present)
CSHB 3572 ON SECOND READING
(by Hilderbran, Eiland, Otto, Bohac, Alvarado, et al.)
CSHB 3572, A bill to be entitled An Act relating to the administration,
collection, and enforcement of taxes on mixed beverages; imposing a tax on sales
of mixed beverages; decreasing the rate of the current tax on mixed beverages.
CSHB 3572 was read second time earlier today and was postponed until this
time.
Amendment No. 1
Representative Hilderbran offered the following amendment to CSHBi3572:
Amend CSHBi3572 (house committee report) on page 2, line 25, by striking
"seven [14] percent" and substituting "6.7 [14] percent".
Amendment No. 1 was adopted.
2268 83rd LEGISLATURE — REGULAR SESSION
Amendment No. 2
Representative Hilderbran offered the following amendment to CSHBi3572:
Amend CSHBi3572 (house committee report) as follows:
(1)iiStrike page 3, lines 4 through 11, and substitute the following
appropriately numbered SECTION:
SECTIONi____.iiSections 183.0212(a) and (b), Tax Code, are amended to
read as follows:
(a)iiFor informational purposes only, a permittee may provide that each sales
invoice, billing, service check, ticket, or other receipt to a customer for the
purchase of an item subject to taxation under this subchapter [chapter] include:
(1)iia separate statement disclosing the amount of tax to be paid by the
permittee under this subchapter [chapter] in relation to that item; or
(2)iia statement of the mixed beverage taxes, consisting of the combined
amount of the tax to be paid by the permittee under this subchapter in relation to
that item and the amount of tax imposed under Subchapter B-1 on that item.
(b)iiA [The separate] statement under Subsection (a)(1) must clearly disclose
the amount of tax payable by the permittee.
(2)iiStrike page 6, lines 6 through 13, and substitute the following:
Sec.i183.042.iiDISCLOSURE OF TAX. A permittee may provide that a
sales invoice, billing, service check, ticket, or other receipt to a customer for the
purchase of an item subject to taxation under this subchapter include:
(1)iia statement that mixed beverage sales tax is included in the sales
price;
(2)iia separate statement of the amount of tax imposed under this
subchapter on that item; or
(3)iia statement of the mixed beverage taxes, consisting of the combined
amount of the tax to be paid by the permittee under Subchapter B in relation to
that item and the amount of tax imposed under this subchapter on that item.
Amendment No. 2 was adopted.
(Branch, Crownover, and Frullo now present)
CSHB 3572, as amended, was passed to engrossment.
CSHB 3238 - NOTICE GIVEN
Pursuant to the provisions of Rulei7, Sectioni37(c) of the House Rules, at
5:56ip.m., Representative Lozano announced his intention to make the motion to
reconsider the vote by which CSHBi3238, as amended, failed to pass to
engrossment by Record No.i470.
CSHB 3201 - VOTE RECONSIDERED
Representative Kolkhorst moved to reconsider the vote by which
CSHBi3201, as amended, was passed to engrossment.
The motion to reconsider prevailed.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2269
CSHB 3201 ON SECOND READING
(by Kolkhorst)
The chair laid before the house, on its second reading and passage to
engrossment,
CSHB 3201, A bill to be entitled An Act relating to the practice of dentistry;
imposing surcharges and fees.
CSHBi3201 was read second time earlier today and was passed to
engrossment, as amended.
Amendment No. 3 - Vote Reconsidered
Representative Kolkhorst moved to reconsider the vote by which
Amendment No.i3 was adopted.
The motion to reconsider prevailed.
Amendment No. 4
Representative Neva´rez offered the following amendment to Amendment
No.i3:
Amend Amendment No.i3 by Fletcher on CSHBi3201 by striking the text
of the amendment and substituting the following:
SECTIONi____.iiSection 254.018, Occupations Code, is amended to read
as follows:
Sec.i254.018.ii[EXPERT] TESTIMONY. A member of the board may not
express an oral or written opinion or serve as an expert witness in a suit or
administrative claim pending before the same board [involving a health care
liability claim] against or for a person licensed or registered under this subtitle
[dentist] for injury to or death of a patient or for a violation of the standard of care
or the commission of malpractice [unless the member receives approval from the
board or an executive committee of the board to serve as an expert witness].
Amendment No. 4 was adopted.
Amendment No. 3, as amended, was adopted.
CSHB 3201, as amended, was passed to engrossment.
POSTPONED BUSINESS
The following bills were laid before the house as postponed business:
(Hunter now present)
CSHB 1010 ON SECOND READING
(by S. King)
CSHB 1010, A bill to be entitled An Act relating to the penalty for causing
certain assaultive physical contact with a child.
CSHB 1010 was read second time earlier today and was postponed until this
time.
2270 83rd LEGISLATURE — REGULAR SESSION
Amendment No. 1
Representatives S. King and Moody offered the following amendment to
CSHBi1010:
Amend CSHBi1010 (house committee report) by striking added SECTION
2 (beginning on page 1, line 12, through page 2, line 16) and substituting the
following:
SECTIONi2.iiSection 22.01(c), Penal Code, is amended to read as follows:
(c)iiAn offense under Subsection (a)(2) or (3) is a Class C misdemeanor,
except that the offense is:
(1)iia Class A misdemeanor if the offense is committed under
Subsection (a)(3) against an elderly individual or disabled individual, as those
terms are defined by Section 22.04; [or]
(2)iia Class A misdemeanor if the offense is committed under
Subsection (a)(3) by a person who is 17 years of age or older against a child as
defined by Section 22.04; or
(3)i[(2)]iia Class B misdemeanor if the offense is committed by a person
who is not a sports participant against a person the actor knows is a sports
participant either:
(A)iiwhile the participant is performing duties or responsibilities in
the participant s’ capacity as a sports participant; or
(B)iiin retaliation for or on account of the participant s’ performance
of a duty or responsibility within the participant s’ capacity as a sports participant.
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. 4).
(Cook now present)
CSHB 1010 - (consideration continued)
Amendment No. 1 - Point of Order
Representative Schaefer raised a point of order against further consideration
of Amendment No.i1.
The point of order was withdrawn.
Amendment No. 1 was adopted.
CSHB 1010, as amended, was passed to engrossment by (Record 471): 96
Yeas, 38 Nays, 2 Present, not voting.
Yeas — Anchia; Ashby; Bell; Bohac; Bonnen, G.; Branch; Burkett;
Burnam; Button; Callegari; Capriglione; Carter; Clardy; Coleman; Cook;
Craddick; Creighton; Crownover; Dale; Darby; Davis, J.; Davis, S.; Elkins;
Farney; Farrar; Fletcher; Flynn; Frullo; Goldman; Gonzales; Gonza´ lez, M.;
Gooden; Guillen; Gutierrez; Harless; Harper-Brown; Herrero; Hilderbran;
Howard; Hunter; Isaac; Johnson; King, K.; King, P.; King, S.; Kolkhorst; Krause;
Kuempel; Larson; Laubenberg; Lavender; Leach; Martinez; Martinez Fischer;
Mene´ndez; Miller, D.; Miller, R.; Moody; Morrison; Mun˜oz; Naishtat; Neva´rez;
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2271
Orr; Otto; Parker; Patrick; Perez; Phillips; Pickett; Price; Raney; Ratliff;
Raymond; Riddle; Ritter; Rodriguez, E.; Sanford; Sheets; Sheffield, J.; Sheffield,
R.; Simmons; Smithee; Springer; Stephenson; Strama; Thompson, E.; Toth;
Turner, C.; Turner, E.S.; Villalba; Villarreal; Walle; White; Workman; Wu;
Zedler.
Nays — Allen; Alonzo; Bonnen, D.; Canales; Collier; Cortez; Davis, Y.;
Deshotel; Dutton; Fallon; Farias; Frank; Gonzalez, N.; Guerra; Hernandez Luna;
Huberty; Hughes; Kleinschmidt; Klick; Lewis; Longoria; Lozano; Lucio; Miles;
Murphy; Oliveira; Perry; Reynolds; Rodriguez, J.; Rose; Schaefer; Simpson;
Smith; Stickland; Taylor; Thompson, S.; Turner, S.; Vo.
Present, not voting — Mr. Speaker; Ma´rquez(C).
Absent, Excused, Committee Meeting — Alvarado; Geren; Pitts.
Absent — Anderson; Aycock; Dukes; Eiland; Giddings; Kacal; Keffer;
King, T.; McClendon; Paddie; Zerwas.
STATEMENTS OF VOTE
When Record No. 471 was taken, I was in the house but away from my
desk. I would have voted no.
Anderson
I was shown voting yes on Record No. 471. I intended to vote no.
Callegari
I was shown voting no on Record No. 471. I intended to vote yes.
Canales
I was shown voting no on Record No. 471. I intended to vote yes.
Fallon
I was shown voting no on Record No. 471. I intended to vote yes.
Guerra
I was shown voting yes on Record No. 471. I intended to vote no.
Price
I was shown voting no on Record No. 471. I intended to vote yes.
J. Rodriguez
COMMITTEE MEETING ANNOUNCEMENTS
The following committee meetings were announced:
Government Efficiency and Reform, upon final adjournment today, Desk 77,
for a formal meeting, to consider pending business.
Homeland Security and Public Safety, upon final adjournment today, Desk
15, for a formal meeting, to consider pending business.
Public Health, upon final adjournment today, Desk 100, for a formal
meeting, to consider pending business.
2272 83rd LEGISLATURE — REGULAR SESSION
Insurance, upon final adjournment today, Desk 13, for a formal meeting, to
consider pending business.
COMMITTEE GRANTED PERMISSION TO MEET
Representative Cook requested permission for the Committee on State
Affairs to meet while the house is in session, during bill referral today, in 1W.14,
to consider pending and previously posted business.
Permission to meet was granted.
COMMITTEE MEETING ANNOUNCEMENT
The following committee meeting was announced:
State Affairs, during bill referral today, 1W.14, for a formal meeting, to
consider pending and previously posted business.
FIVE-DAY POSTING RULE SUSPENDED
Representative D. Bonnen moved to suspend the five-day posting rule to
allow the Committee on Ways and Means to consider HBi509, HBi607, HBi716,
HBi1338, HBi1943, HBi3742, HJRi84, and HJRi102 at 8:30ia.m. Saturday,
Mayi4 in E2.014.
The motion prevailed.
COMMITTEE MEETING ANNOUNCEMENT
The following committee meeting was announced:
Ways and Means, 8:30 a.m. Saturday, May 4, E2.014, for a public hearing,
to consider HBi509, HBi607, HBi716, HBi1338, HBi1943, HBi3742, HJRi84,
HJRi102, and pending business.
SB 1803 - RECOMMITTED
Representative Raymond moved to recommit SBi1803 to the Committee on
Human Services.
The motion prevailed.
HB 1829 - RECOMMITTED
Representative Raymond moved to recommit HBi1829 to the Committee on
Human Services.
The motion prevailed.
PROVIDING FOR ADJOURNMENT
At 6:46 p.m., Representative Elkins moved that, at the conclusion of the
reading of bills and resolutions on first reading and referral to committees, the
house adjourn until 10ia.m. tomorrow in memory of Helen W. Prince of
Southold, New York.
The motion prevailed.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2273
BILLS AND JOINT RESOLUTIONS ON FIRST READING
AND REFERRAL TO COMMITTEES
RESOLUTIONS REFERRED TO COMMITTEES
Bills and joint resolutions were at this time laid before the house, read first
time, and referred to committees. Resolutions were at this time laid before the
house and referred to committees. (See the addendum to the daily journal,
Referred to Committees, List No. 1.)
(Taylor in the chair)
ADJOURNMENT
In accordance with a previous motion, the house, at 6:52ip.m., adjourned
until 10ia.m. tomorrow.
AAAAAADDENDUMAAAAA
REFERRED TO COMMITTEES
The following bills and joint resolutions were today laid before the house,
read first time, and referred to committees, and the following resolutions were
today laid before the house and referred to committees. If indicated, the chair
today corrected the referral of the following measures:
List No. 1
HR 1809 (By R. Sheffield), In memory of Ina Faye Minyard McGinnis of
Troy.
To Rules and Resolutions.
HR 1810 (By E. S. Turner), Congratulating Spencer Sosnowski of
Rockwall-Heath High School on his selection to perform with the U.S. Marine
Corps Band.
To Rules and Resolutions.
HR 1811 (By Ma´rquez), Congratulating El Paso artist and author Bill "Rak"
Rakocy on his 89th birthday.
To Rules and Resolutions.
HR 1815 (By J. Sheffield), Paying tribute to the life of Michael Cook
Walton of Stephenville.
To Rules and Resolutions.
HR 1816 (By Farney), Congratulating Dr. Michael Douglas on being named
executive director of the Texas Life-Sciences Collaboration Center in
Georgetown.
To Rules and Resolutions.
HR 1818 (By Farney), Congratulating the Marble Falls Independent School
District on receiving perfect scores at all campuses on its most recent cafeteria
health inspection.
To Rules and Resolutions.
HR 1819 (By Dutton), Commending Dr. W. E. Bosarge, Jr., of Houston on
his achievements.
To Rules and Resolutions.
2274 83rd LEGISLATURE — REGULAR SESSION
HR 1820 (By Dutton), Commending Marie Taylor Bosarge of Houston on
her contributions to her community.
To Rules and Resolutions.
HR 1821 (By Wu), Commemorating the Memorial Hermann Foundation
2013 Circle of Life Gala and the fund-raising campaign Revolutionizing
Neuroscience and honoring Elizabeth and Gary Petersen for their philanthropy.
To Rules and Resolutions.
HR 1822 (By Wu), In memory of the Reverend Ben Sanchez Riojas of
Houston.
To Rules and Resolutions.
HR 1823 (By Wu), In memory of Ralph Kilpatrick Cox Brown of Houston.
To Rules and Resolutions.
HR 1824 (By Mene´ndez), Honoring David Sinclair for his 40 years of
service to the Texas Parks and Wildlife Department.
To Rules and Resolutions.
HR 1825 (By Mene´ndez), Congratulating Colonel Pete Flores on his
retirement as Law Enforcement Division director of the Texas Parks and Wildlife
Department.
To Rules and Resolutions.
HR 1826 (By Mene´ndez), Congratulating Susan Blackwood on her
achievements as executive director of San Antonio Sports.
To Rules and Resolutions.
HR 1827 (By Sanford), Commending Blake Allen for his service as deputy
district director in the office of State Representative Scott Sanford.
To Rules and Resolutions.
HR 1828 (By J. Rodriguez), Commending Leon Valley on earning
designation as a "Tree City USA" by the Arbor Day Foundation and Texas A&M
Forest Service.
To Rules and Resolutions.
HR 1830 (By Gooden), In memory of Gilbert Willie, Sr., of Terrell.
To Rules and Resolutions.
HR 1831 (By G. Bonnen), Congratulating Brittany Harris on her receipt of
the Service Above Self Award from the Friendswood Rotary Club.
To Rules and Resolutions.
HR 1832 (By G. Bonnen), In memory of Taylor Lake Village Mayor-elect
Lilian Norman Keeney.
To Rules and Resolutions.
HR 1833 (By G. Bonnen), Congratulating Devon Joel Carter of
Friendswood on attaining the rank of Eagle Scout.
To Rules and Resolutions.
HR 1834 (By Lewis), Commemorating the 10th Annual Senior Celebration
in Ector County.
To Rules and Resolutions.
HR 1835 (By Bohac), Commending Thomas Neumann on his service as
executive director of the Jewish Institute for National Security Affairs.
To Rules and Resolutions.
HR 1836 (By Bohac), Honoring Judge Herman Paul Pressler III of Houston
for his service to the State of Texas.
To Rules and Resolutions.
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2275
HR 1837 (By Bohac), Congratulating Wayne F. Schaper, Sr., on having the
Spring Branch ISD administration building named in his honor.
To Rules and Resolutions.
HR 1838 (By Bohac), In memory of David Allan Schwerdtfeger of Seguin.
To Rules and Resolutions.
HR 1839 (By Bohac), Honoring U.S. Circuit Judge Jerry E. Smith for his 25
years of service on the Fifth Circuit Court of Appeals.
To Rules and Resolutions.
HR 1840 (By Bohac), In memory of Stella Marion Hawes of Mineral Wells.
To Rules and Resolutions.
HR 1841 (By Bohac), In memory of Lloyd "Bland" McReynolds of
Houston.
To Rules and Resolutions.
HR 1842 (By Bohac), In memory of Miguel A. Hernandez of Houston.
To Rules and Resolutions.
HR 1843 (By T. King), Commemorating the rededication of the SSgt. Willie
De Leon Civic Center in Uvalde.
To Rules and Resolutions.
HR 1844 (By Price), Congratulating the Valero McKee Refinery on its
receipt of a Texas Environmental Excellence Award.
To Rules and Resolutions.
HR 1845 (By Sanford), Congratulating Christopher Paxton for his service as
legislative director for Representative Scott Sanford.
To Rules and Resolutions.
HR 1847 (By Craddick), Congratulating Dally Willis of Midland on his
93rd birthday.
To Rules and Resolutions.
HR 1848 (By Gutierrez), In memory of Vojt J. Holub of San Antonio.
To Rules and Resolutions.
SB 38 to Public Education.
SB 39 to Public Education.
SB 110 to Judiciary and Civil Jurisprudence.
SB 377 to Public Education.
SB 766 to Licensing and Administrative Procedures.
SB 1191 to Public Health.
SB 1360 to Criminal Jurisprudence.
SB 1401 to Public Health.
SB 1427 to Agriculture and Livestock.
SB 1451 to Criminal Jurisprudence.
SB 1606 to Ways and Means.
SB 1662 to Ways and Means.
SB 1750 to Agriculture and Livestock.
SB 1799 to Public Education.
SB 1878 to Special Purpose Districts.
SB 1883 to Special Purpose Districts.
2276 83rd LEGISLATURE — REGULAR SESSION
SB 1889 to Public Health.
SJR 54 to County Affairs.
SIGNED BY THE SPEAKER
The following bills and resolutions were today signed in the presence of the
house by the speaker:
Senate List No. 20
SBi283, SBi294, SBi297, SBi312, SBi618, SBi966, SBi1248
MESSAGES FROM THE SENATE
The following messages from the senate were today received by the house:
Message No. 2
MESSAGE FROM THE SENATE
SENATE CHAMBER
Austin, Texas
Thursday, May 2, 2013 - 2
The Honorable Speaker of the House
House Chamber
Austin, Texas
Mr. Speaker:
I am directed by the senate to inform the house that the senate has taken the
following action:
THE SENATE HAS PASSED THE FOLLOWING MEASURES:
HCR 31 Eiland SPONSOR: Taylor
Designating the Kemp s’ ridley sea turtle as the official State Sea Turtle of Texas.
SB 171 West
Relating to the establishment of a workgroup to study the use by state agencies of
a uniform application form following disasters.
SB 338 Rodrı´guez
Relating to the liability of certain social workers who provide volunteer health
care services to charitable organizations.
SB 644 Huffman
Relating to the creation of a standard request form for prior authorization of
prescription drug benefits.
SB 1258 Hinojosa
Relating to improving access to nursing education programs.
SB 1436 Paxton
Relating to the service retirement annuity of certain members of the Judicial
Retirement System of Texas Plan One.
SB 1836 Deuell
Relating to the funding of the Texas Home Visiting Program; authorizing
voluntary contributions.
SB 1890 Hinojosa
Relating to procedures for the dissolution of the Hidalgo County Water
Improvement District No. 3.
Respectfully,
Patsy Spaw
Secretary of the Senate
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2277
Message No. 3
MESSAGE FROM THE SENATE
SENATE CHAMBER
Austin, Texas
Thursday, May 2, 2013 - 3
The Honorable Speaker of the House
House Chamber
Austin, Texas
Mr. Speaker:
I am directed by the senate to inform the house that the senate has taken the
following action:
THE SENATE HAS PASSED THE FOLLOWING MEASURES:
SB 514 Davis
Relating to the installation, maintenance, operation, and relocation of saltwater
pipeline facilities.
SB 977 West
Relating to the procedure used to petition for an order of nondisclosure of
criminal history record information.
SB 1216 Eltife
Relating to the creation of a standard request form for prior authorization of
medical care or health care services.
SB 1801 Watson
Relating to the adoption of fire hydrant requirements for a wildland-urban
interface in certain municipalities.
Respectfully,
Patsy Spaw
Secretary of the Senate
Message No. 4
MESSAGE FROM THE SENATE
SENATE CHAMBER
Austin, Texas
Thursday, May 2, 2013 - 4
The Honorable Speaker of the House
House Chamber
Austin, Texas
Mr. Speaker:
I am directed by the senate to inform the house that the senate has taken the
following action:
THE SENATE HAS PASSED THE FOLLOWING MEASURES:
SB 212 Nichols
Relating to the continuation, functions, and name of the Railroad Commission of
Texas; providing for the imposition of fees and the elimination of a fee.
SB 873 Hegar
Relating to the permitting authority of a groundwater conservation district for the
drilling or operation of a water well used to supply water for the drilling,
exploration, or production of oil or gas.
SB 1727 Deuell
Relating to the use of the Texas emissions reduction plan fund.
SB 1775 West
2278 83rd LEGISLATURE — REGULAR SESSION
Relating to school campus information, student transfers, and the public
education grant program.
Respectfully,
Patsy Spaw
Secretary of the Senate
AAAAAAPPENDIXAAAAA
STANDING COMMITTEE REPORTS
Favorable reports have been filed by committees as follows:
May 1
Agriculture and Livestock - HBi1998
Business and Industry - HBi3750, SBi60, SBi887
County Affairs - HBi714, HBi1384, HBi3895, HBi3949, HBi3950,
HBi3951, HJRi148
Criminal Jurisprudence - HBi2559, SBi1114 (corrected)
Economic and Small Business Development - HBi2181, HBi2390
Elections - HBi1398
Environmental Regulation - HBi3110
Higher Education - HBi1004, HBi2036, HBi3498
Human Services - HBi1143, HBi1396, HBi1633, HBi1828, SBi1236
Insurance - HBi1183, HBi2717, HBi3451, SBi147
Investments and Financial Services - HBi1575, SBi581
Judiciary and Civil Jurisprudence - HBi1710, HBi2547, HBi2930, HBi3170
Land and Resource Management - SBi1157
Licensing and Administrative Procedures - HBi619, HBi871, HBi2378,
HBi3038
Natural Resources - HBi1796, HBi2133, HBi2577, HBi2739, HBi3924,
SBi567
Public Health - HBi947, HBi1039, HBi2709, SBi406, SBi869
Special Purpose Districts - HBi1157, HBi1357, HBi3911, HBi3913,
HBi3917, HBi3932, HBi3933
State Affairs - HBi2342, HJRi150, SBi1023
Transparency in State Agency Operations, Select - HBi9, HBi12, HBi16
Transportation - SBi1489
Ways and Means - HBi97, HBi178, HBi214, HBi357, HBi500, HBi862,
HBi875, HBi1060, HBi1202, HBi1655, HBi2139, HBi2274, HBi2445,
HBi2972, HBi3121, HBi3169, HJRi21, HJRi24, HJRi62, HJRi72, HJRi133
Thursday, May 2, 2013 HOUSE JOURNAL — 63rd Day 2279
ENGROSSED
May 1 - HBi21, HBi127, HBi259, HBi489, HBi517, HBi545, HBi580,
HBi642, HBi697, HBi717, HBi824, HBi827, HBi939, HBi1086, HBi1372,
HBi2259, HBi2442, HBi2443, HBi2961, HBi3176, HJRi147
ENROLLED
May 1 - HCRi47, HCRi67, HCRi105, HCRi107
TAB 5
1-1 By:AAVillarreal, Workman, King of Parker H.B.ANo.A585
1-2 AAAA(Senate SponsorA-AEltife)
1-3 (In the SenateA-AReceived from the House MayA6,A2013;
1-4 MayA9,A2013, read first time and referred to Committee on Finance;
1-5 MayA20,A2013, reported adversely, with favorable Committee
1-6 Substitute by the following vote: Yeas 13, Nays 1; MayA20,A2013,
1-7 sent to printer.)
1-8 COMMITTEE VOTE
1-9 AAAAAAAAAAAAAA Yea Nay AbsentA PNV
1-10 WilliamsAAAAAA AXA AAA AAAAAAA AAA
1-11 HinojosaAAAAAA AXA AAA AAAAAAA AAA
1-12 DeuellAAAAAAAA AXA AAA AAAAAAA AAA
1-13 DuncanAAAAAAAA AAA AXA AAAAAAA AAA
1-14 EltifeAAAAAAAA AXA AAA AAAAAAA AAA
1-15 EstesAAAAAAAAA AXA AAA AAAAAAA AAA
1-16 HegarAAAAAAAAA AXA AAA AAAAAAA AAA
1-17 HuffmanAAAAAAA AXA AAA AAAAAAA AAA
1-18 LucioAAAAAAAAA AXA AAA AAAAAAA AAA
1-19 NelsonAAAAAAAA AXA AAA AAAAAAA AAA
1-20 PatrickAAAAAAA AXA AAA AAAAAAA AAA
1-21 SeligerAAAAAAA AXA AAA AAAAAAA AAA
1-22 WestAAAAAAAAAA AAA AAA AAAXAAA AAA
1-23 WhitmireAAAAAA AXA AAA AAAAAAA AAA
1-24 ZaffiriniAAAAA AXA AAA AAAAAAA AAA
1-25 COMMITTEE SUBSTITUTE FOR H.B.ANo.A585 By:AAEltife
1-26 A BILL TO BE ENTITLED
1-27 AN ACT
1-28 relating to ad valorem taxation; creating an offense.
1-29 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-30 SECTIONA1.AASection 5.041, Tax Code, is amended by adding
1-31 Subsection (b-1) and amending Subsections (e-2) and (f) to read as
1-32 follows:
1-33 (b-1)AAAt the conclusion of a course established under
1-34 Subsection (a), each member of an appraisal review board in
1-35 attendance shall complete a statement, on a form prescribed by the
1-36 comptroller, indicating that the member will comply with the
1-37 requirements of this title in conducting hearings.
1-38 (e-2)AADuring [As soon as practicable after the beginning of]
1-39 the second year of an appraisal review board member ’s term of
1-40 office, the member must successfully complete the course
1-41 established under Subsection (e-1).AAAt the conclusion of the
1-42 course, the member must complete a statement described by
1-43 Subsection (b-1). A person may not participate in a hearing
1-44 conducted by the board, vote on a determination of a protest, or be
1-45 reappointed to an additional term on the board until the person has
1-46 completed [who fails to timely complete] the course established
1-47 under Subsection (e-1) and has received a certificate of course
1-48 completion [may not be reappointed to an additional term on the
1-49 appraisal review board].AAIf the person is reappointed to an
1-50 additional term on the appraisal review board, the person must
1-51 successfully complete the course established under Subsection
1-52 (e-1) and comply with the other requirements of this subsection in
1-53 each year the member continues to serve.
1-54 (f)AAThe comptroller may not advise a property owner, a
1-55 property owner ’s agent, or the chief appraiser or another employee
1-56 of an appraisal district[, or an appraisal review board] on a matter
1-57 that the comptroller knows is the subject of a protest to the
1-58 appraisal review board. The comptroller may provide advice to an
1-59 appraisal review board member as authorized by Subsection (a)(4) of
1-60 this section or Section 5.103 and may communicate with the chairman
1
C.S.H.B.ANo.A585
2-1 of an appraisal review board or a taxpayer liaison officer
2-2 concerning a complaint filed under Section 6.052.
2-3 SECTIONA2.AAChapter 5, Tax Code, is amended by adding Section
2-4 5.103 to read as follows:
2-5 Sec.A5.103.AAAPPRAISAL REVIEW BOARD OVERSIGHT. (a) The
2-6 comptroller shall prepare model hearing procedures for appraisal
2-7 review boards.
2-8 (b)AAThe model hearing procedures shall address:
2-9 (1)AAthe statutory duties of an appraisal review board;
2-10 (2)AAthe process for conducting a hearing;
2-11 (3)AAthe scheduling of hearings;
2-12 (4)AAthe postponement of hearings;
2-13 (5)AAthe notices required under this title;
2-14 (6)AAthe determination of good cause under Section
2-15 41.44(b);
2-16 (7)AAthe determination of good cause under Sections
2-17 41.45(e) and (e-1);
2-18 (8)AAa party ’s right to offer evidence and argument;
2-19 (9)AAa party ’s right to examine or cross-examine
2-20 witnesses or other parties;
2-21 (10)AAa party ’s right to appear by an agent;
2-22 (11)AAthe prohibition of an appraisal review board ’s
2-23 consideration of information not provided at a hearing;
2-24 (12)AAex parte and other prohibited communications;
2-25 (13)AAthe exclusion of evidence at a hearing as
2-26 required by Section 41.67(d);
2-27 (14)AAthe postponement of a hearing as required by
2-28 Section 41.66(h);
2-29 (15)AAconflicts of interest;
2-30 (16)AAthe process for the administration of
2-31 applications for membership on an appraisal review board; and
2-32 (17)AAany other matter related to fair and efficient
2-33 appraisal review board hearings.
2-34 (c)AAThe comptroller may:
2-35 (1)AAcategorize appraisal districts based on the size
2-36 of the district, the number of protests filed in the district, or
2-37 similar characteristics; and
2-38 (2)AAdevelop different model hearing procedures for
2-39 different categories of districts.
2-40 (d)AAAn appraisal review board shall follow the model hearing
2-41 procedures prepared by the comptroller when establishing its
2-42 procedures for hearings as required by Section 41.66(a).
2-43 (e)AAThe comptroller shall prescribe the contents of a survey
2-44 form for the purpose of providing the public a reasonable
2-45 opportunity to offer comments and suggestions concerning the
2-46 appraisal review board established for an appraisal district. The
2-47 survey form must permit a person to offer comments and suggestions
2-48 concerning the matters listed in Subsection (b) or any other matter
2-49 related to the fairness and efficiency of the appraisal review
2-50 board. The survey form, together with instructions for completing
2-51 the form and submitting the form, shall be provided to each property
2-52 owner at or before each hearing on a protest conducted by an
2-53 appraisal review board. The appraisal office may provide clerical
2-54 assistance to the comptroller for purposes of the implementation of
2-55 this subsection, including assistance in providing and receiving
2-56 the survey form. The comptroller, or an appraisal office providing
2-57 clerical assistance to the comptroller, may provide for the
2-58 provision and submission of survey forms electronically.
2-59 (f)AAThe comptroller shall issue an annual report
2-60 summarizing the survey forms submitted by property owners
2-61 concerning each appraisal review board. The report may not
2-62 disclose the identity of a person who submits a survey form.
2-63 SECTIONA3.AASection 6.035, Tax Code, is amended by adding
2-64 Subsection (a-1) to read as follows:
2-65 (a-1)AAAn individual is ineligible to serve on an appraisal
2-66 district board of directors if the individual has engaged in the
2-67 business of appraising property for compensation for use in
2-68 proceedings under this title or of representing property owners for
2-69 compensation in proceedings under this title in the appraisal
2
C.S.H.B.ANo.A585
3-1 district at any time during the preceding five years.
3-2 SECTIONA4.AASection 6.052, Tax Code, is amended by amending
3-3 Subsections (a), (b), (c), and (e) and adding Subsection (f) to read
3-4 as follows:
3-5 (a)AAThe board of directors for an appraisal district created
3-6 for a county with a population of more than 120,000 [125,000] shall
3-7 appoint a taxpayer liaison officer who shall serve at the pleasure
3-8 of the board. The taxpayer liaison officer shall administer the
3-9 public access functions required by Sections 6.04(d), (e), and (f),
3-10 and is responsible for resolving disputes not involving matters
3-11 that may be protested under Section 41.41. In addition, the
3-12 taxpayer liaison officer is responsible for receiving, and
3-13 compiling a list of, comments and suggestions filed by the chief
3-14 appraiser, a property owner, or a property owner ’s agent concerning
3-15 the matters listed in Section 5.103(b) or any other matter related
3-16 to the fairness and efficiency of the appraisal review board
3-17 established for the appraisal district. The taxpayer liaison
3-18 officer shall forward to the comptroller comments and suggestions
3-19 filed under this subsection in the form and manner prescribed by the
3-20 comptroller.
3-21 (b)AAThe taxpayer liaison officer shall [may] provide to the
3-22 public information and materials designed to assist property owners
3-23 in understanding the appraisal process, protest procedures, the
3-24 procedure for filing comments and suggestions under Subsection (a)
3-25 of this section or a complaint under Section 6.04(g), and other
3-26 [related] matters. Information concerning the process for
3-27 submitting comments and suggestions to the comptroller concerning
3-28 an appraisal review board shall be provided at each protest
3-29 hearing.
3-30 (c)AAThe taxpayer liaison officer shall report to the board
3-31 at each meeting on the status of all comments and suggestions
3-32 [complaints] filed with the officer under Subsection (a) of this
3-33 section and all complaints filed with the board under Section
3-34 6.04(g).
3-35 (e)AAThe chief appraiser or any other person who performs
3-36 appraisal or legal services for the appraisal district for
3-37 compensation is not eligible to be the taxpayer liaison officer
3-38 [for the appraisal district].
3-39 (f)AAThe taxpayer liaison officer for an appraisal district
3-40 described by Section 6.41(d-1) is responsible for providing
3-41 clerical assistance to the local administrative district judge in
3-42 the selection of appraisal review board members. The officer shall
3-43 deliver to the local administrative district judge any applications
3-44 to serve on the board that are submitted to the officer and shall
3-45 perform other duties as requested by the local administrative
3-46 district judge. The officer may not influence the process for
3-47 selecting appraisal review board members.
3-48 SECTIONA5.AASection 6.41, Tax Code, is amended by amending
3-49 Subsections (d-1) and (f) and adding Subsections (i), (j), and (k)
3-50 to read as follows:
3-51 (d-1)AAIn a county with a population of 120,000 [3.3 million
3-52 or more or a county with a population of 550,000 or more that is
3-53 adjacent to a county with a population of 3.3 million] or more the
3-54 members of the board are appointed by the local administrative
3-55 district judge under Subchapter D, Chapter 74, Government Code, in
3-56 the county in which the appraisal district is established. All
3-57 applications submitted to the appraisal district or to the
3-58 appraisal review board from persons seeking appointment as a member
3-59 of the appraisal review board shall be delivered to the local
3-60 administrative district judge. The appraisal district may provide
3-61 the local administrative district judge with information regarding
3-62 whether an applicant for appointment to or a member of the board
3-63 owes any delinquent ad valorem taxes to a taxing unit participating
3-64 in the appraisal district.
3-65 (f)AAA member of the board may be removed from the board by a
3-66 majority vote of the appraisal district board of directors, or by
3-67 the local administrative district judge or the judge ’s designee, as
3-68 applicable, that appointed the member. Grounds for removal are:
3-69 (1)AAa violation of Section 6.412, 6.413, 41.66(f), or
3
C.S.H.B.ANo.A585
4-1 41.69; [or]
4-2 (2)AAgood cause relating to the attendance of members
4-3 at called meetings of the board as established by written policy
4-4 adopted by a majority of the appraisal district board of directors;
4-5 or
4-6 (3)AAclear and convincing evidence of repeated bias or
4-7 misconduct.
4-8 (i)AAThis subsection applies only to an appraisal district
4-9 described by Subsection (d-1). A chief appraiser or another
4-10 employee or agent of the appraisal district, a member of the
4-11 appraisal review board for the appraisal district, a member of the
4-12 board of directors of the appraisal district, a property tax
4-13 consultant, or an agent of a property owner commits an offense if
4-14 the person communicates with the local administrative district
4-15 judge regarding the appointment of appraisal review board members.
4-16 This subsection does not apply to:
4-17 (1)AAa communication between a member of the appraisal
4-18 review board and the local administrative district judge regarding
4-19 the member ’s reappointment to the board;
4-20 (2)AAa communication between the taxpayer liaison
4-21 officer for the appraisal district and the local administrative
4-22 district judge in the course of the performance of the officer ’s
4-23 clerical duties so long as the officer does not offer an opinion or
4-24 comment regarding the appointment of appraisal review board
4-25 members; or
4-26 (3)AAa communication between a chief appraiser or
4-27 another employee or agent of the appraisal district, a member of the
4-28 appraisal review board for the appraisal district, or a member of
4-29 the board of directors of the appraisal district and the local
4-30 administrative district judge regarding information described by
4-31 Subsection (d-1) of this section or Section 411.1296, Government
4-32 Code.
4-33 (j)AAA chief appraiser or another employee or agent of an
4-34 appraisal district commits an offense if the person communicates
4-35 with a member of the appraisal review board for the appraisal
4-36 district, a member of the board of directors of the appraisal
4-37 district, or, if the appraisal district is an appraisal district
4-38 described by Subsection (d-1), the local administrative district
4-39 judge regarding a ranking, scoring, or reporting of the percentage
4-40 by which the appraisal review board or a panel of the board reduces
4-41 the appraised value of property.
4-42 (k)AAAn offense under Subsection (i) or (j) is a Class A
4-43 misdemeanor.
4-44 SECTIONA6.AASection 6.411(c-1), Tax Code, is amended to read
4-45 as follows:
4-46 (c-1)AAThis section does not apply to communications with a
4-47 member of an appraisal review board by [involving] the chief
4-48 appraiser or another employee or a member of the board of directors
4-49 of an appraisal district or a property tax consultant or attorney
4-50 representing a party to a proceeding before [and a member of] the
4-51 appraisal review board:
4-52 (1)AAduring a hearing on a protest or other proceeding
4-53 before the appraisal review board;
4-54 (2)AAthat constitute social conversation;
4-55 (3)AAthat are specifically limited to and involve
4-56 administrative, clerical, or logistical matters related to the
4-57 scheduling and operation of hearings, the processing of documents,
4-58 the issuance of orders, notices, and subpoenas, and the operation,
4-59 appointment, composition, or attendance at training of the
4-60 appraisal review board; or
4-61 (4)AAthat are necessary and appropriate to enable the
4-62 board of directors of the appraisal district to determine whether
4-63 to appoint, reappoint, or remove a person as a member or the
4-64 chairman or secretary of the appraisal review board.
4-65 SECTIONA7.AAChapter 21, Tax Code, is amended by adding
4-66 Sections 21.09 and 21.10 to read as follows:
4-67 Sec.A21.09.AAALLOCATION APPLICATION. (a) To receive an
4-68 allocation authorized by Section 21.03, 21.031, 21.05, or 21.055, a
4-69 person claiming the allocation must apply for the allocation. To
4
C.S.H.B.ANo.A585
5-1 apply for an allocation, a person must file an allocation
5-2 application form with the chief appraiser in the appraisal district
5-3 in which the property subject to the claimed allocation has taxable
5-4 situs.
5-5 (b)AAA person claiming an allocation must apply for the
5-6 allocation each year the person claims the allocation. A person
5-7 claiming an allocation must file a completed allocation application
5-8 form before May 1 and must provide the information required by the
5-9 form. If the property was not on the appraisal roll in the
5-10 preceding year, the deadline for filing the allocation application
5-11 form is extended to the 45th day after the date of receipt of the
5-12 notice of appraised value required by Section 25.19(a)(3). For
5-13 good cause shown, the chief appraiser shall extend the deadline for
5-14 filing an allocation application form by written order for a period
5-15 not to exceed 60 days.
5-16 (c)AAThe comptroller shall prescribe the contents of the
5-17 allocation application form and shall ensure that the form requires
5-18 an applicant to provide the information necessary to determine the
5-19 validity of the allocation claim.
5-20 (d)AAIf the chief appraiser learns of any reason indicating
5-21 that an allocation previously allowed should be canceled, the chief
5-22 appraiser shall investigate. If the chief appraiser determines
5-23 that the property is not entitled to an allocation, the chief
5-24 appraiser shall cancel the allocation and deliver written notice of
5-25 the cancellation not later than the fifth day after the date the
5-26 chief appraiser makes the cancellation. A person may protest the
5-27 cancellation of an allocation.
5-28 (e)AAThe filing of a rendition under Chapter 22 is not a
5-29 condition of qualification for an allocation.
5-30 Sec.A21.10.AALATE APPLICATION FOR ALLOCATION. (a) The chief
5-31 appraiser shall accept and approve or deny an application for an
5-32 allocation under Section 21.09 after the deadline for filing the
5-33 application has passed if the application is filed before the date
5-34 the appraisal review board approves the appraisal records.
5-35 (b)AAIf the application is approved, the property owner is
5-36 liable to each taxing unit for a penalty in an amount equal to 10
5-37 percent of the difference between the amount of tax imposed by the
5-38 taxing unit on the property without the allocation and the amount of
5-39 tax imposed on the property with the allocation.
5-40 (c)AAThe chief appraiser shall make an entry on the appraisal
5-41 records for the property indicating the property owner ’s liability
5-42 for the penalty and shall deliver a written notice of imposition of
5-43 the penalty, explaining the reason for its imposition, to the
5-44 property owner.
5-45 (d)AAThe tax assessor for a taxing unit that taxes the
5-46 property shall add the amount of the penalty to the property owner ’s
5-47 tax bill, and the tax collector for the unit shall collect the
5-48 penalty at the time and in the manner the collector collects the
5-49 tax. The amount of the penalty constitutes a lien against the
5-50 property against which the penalty is imposed, as if the penalty
5-51 were a tax, and accrues penalty and interest in the same manner as a
5-52 delinquent tax.
5-53 SECTIONA8.AASection 22.01, Tax Code, is amended by adding
5-54 Subsections (c-1), (c-2), and (d-1) to read as follows:
5-55 (c-1)AAIn this section:
5-56 (1)AA"Secured party" has the meaning assigned by
5-57 Section 9.102, Business & Commerce Code.
5-58 (2)AA"Security interest" has the meaning assigned by
5-59 Section 1.201, Business & Commerce Code.
5-60 (c-2)AAWith the consent of the property owner, a secured
5-61 party may render for taxation any property of the property owner in
5-62 which the secured party has a security interest on January 1,
5-63 although the secured party is not required to render the property by
5-64 Subsection (a) or (b). This subsection applies only to property
5-65 that has a historical cost when new of more than $50,000.
5-66 (d-1)AAA secured party who renders property under Subsection
5-67 (c-2) shall indicate the party ’s status as a secured party and shall
5-68 state the name and address of the property owner. A secured party
5-69 is not liable for inaccurate information included on the rendition
5
C.S.H.B.ANo.A585
6-1 statement if the property owner supplied the information or for
6-2 failure to timely file the rendition statement if the property
6-3 owner failed to promptly cooperate with the secured party. A
6-4 secured party may rely on information provided by the property
6-5 owner with respect to:
6-6 (1)AAthe accuracy of information in the rendition
6-7 statement;
6-8 (2)AAthe appraisal district in which the rendition
6-9 statement must be filed; and
6-10 (3)AAcompliance with any provisions of this chapter
6-11 that require the property owner to supply additional information.
6-12 SECTIONA9.AASection 22.24(e), Tax Code, is amended to read as
6-13 follows:
6-14 (e)AATo be valid, a rendition or report must be sworn to
6-15 before an officer authorized by law to administer an oath. The
6-16 comptroller may not prescribe or approve a rendition or report form
6-17 unless the form provides for the person filing the form to swear
6-18 that the information provided in the rendition or report is true and
6-19 accurate to the best of the person ’s knowledge and belief. This
6-20 subsection does not apply to a rendition or report filed by a
6-21 secured party, as defined by Section 22.01, the property owner, an
6-22 employee of the property owner, or an employee of a property owner
6-23 on behalf of an affiliated entity of the property owner.
6-24 SECTIONA10.AASection 31.11, Tax Code, is amended by adding
6-25 Subsections (j) and (k) to read as follows:
6-26 (j)AAIf the collector for a taxing unit does not respond to an
6-27 application for a refund on or before the 90th day after the date
6-28 the application is filed with the collector, the application is
6-29 presumed to have been denied.
6-30 (k)AANot later than the 60th day after the date the collector
6-31 for a taxing unit denies an application for a refund, the taxpayer
6-32 may file suit against the taxing unit in district court to compel
6-33 the payment of the refund. If the collector collects taxes for more
6-34 than one taxing unit, the taxpayer may join in the suit each taxing
6-35 unit on behalf of which the collector denied the refund. If the
6-36 taxpayer prevails in the suit, the taxpayer may be awarded:
6-37 (1)AAcosts of court; and
6-38 (2)AAreasonable attorney ’s fees in an amount not to
6-39 exceed the greater of:
6-40 (A)AA$1,500; or
6-41 (B)AA30 percent of the total amount of the refund
6-42 determined by the court to be due.
6-43 SECTIONA11.AASection 33.48(a), Tax Code, is amended to read
6-44 as follows:
6-45 (a)AAIn addition to other costs authorized by law, a taxing
6-46 unit is entitled to recover the following costs and expenses in a
6-47 suit to collect a delinquent tax:
6-48 (1)AAall usual court costs, including the cost of
6-49 serving process and electronic filing fees;
6-50 (2)AAcosts of filing for record a notice of lis pendens
6-51 against property;
6-52 (3)AAexpenses of foreclosure sale;
6-53 (4)AAreasonable expenses that are incurred by the
6-54 taxing unit in determining the name, identity, and location of
6-55 necessary parties and in procuring necessary legal descriptions of
6-56 the property on which a delinquent tax is due;
6-57 (5)AAattorney ’s fees in the amount of 15 percent of the
6-58 total amount of taxes, penalties, and interest due the unit; and
6-59 (6)AAreasonable attorney ad litem fees approved by the
6-60 court that are incurred in a suit in which the court orders the
6-61 appointment of an attorney to represent the interests of a
6-62 defendant served with process by means of citation by publication
6-63 or posting.
6-64 SECTIONA12.AASection 33.49(a), Tax Code, is amended to read
6-65 as follows:
6-66 (a)AAExcept as provided by Subsection (b), a taxing unit is
6-67 not liable in a suit to collect taxes for court costs, including any
6-68 fees for service of process or electronic filing, an attorney ad
6-69 litem, arbitration, or mediation, and may not be required to post
6
C.S.H.B.ANo.A585
7-1 security for costs.
7-2 SECTIONA13.AASection 41.45, Tax Code, is amended by adding
7-3 Subsection (n) to read as follows:
7-4 (n)AAA property owner does not waive the right to appear in
7-5 person at the protest hearing by submitting an affidavit to the
7-6 appraisal review board. The board may consider the affidavit only
7-7 if the property owner does not appear at the protest hearing in
7-8 person. For purposes of scheduling the hearing, the property owner
7-9 shall state in the affidavit that the property owner does not intend
7-10 to appear at the hearing or that the property owner intends to
7-11 appear at the hearing and that the affidavit may be used only if the
7-12 property owner does not appear at the hearing. If the property
7-13 owner does not state in the affidavit whether the owner intends to
7-14 appear at the hearing, the board shall consider the submission of
7-15 the affidavit as an indication that the property owner does not
7-16 intend to appear at the hearing. If the property owner states in
7-17 the affidavit that the owner does not intend to appear at the
7-18 hearing or does not state in the affidavit whether the owner intends
7-19 to appear at the hearing, the appraisal review board is not required
7-20 to consider the affidavit at the scheduled hearing and may consider
7-21 the affidavit at a hearing designated for the specific purpose of
7-22 processing affidavits.
7-23 SECTIONA14.AASection 41.66, Tax Code, is amended by adding
7-24 Subsections (i), (j), (k), (l), (m), (n), and (o) to read as
7-25 follows:
7-26 (i)AAA hearing on a protest filed by a property owner who is
7-27 not represented by an agent designated under Section 1.111 shall be
7-28 set for a time and date certain. If the hearing is not commenced
7-29 within two hours of the time set for the hearing, the appraisal
7-30 review board shall postpone the hearing on the request of the
7-31 property owner.
7-32 (j)AAOn the request of a property owner or a designated
7-33 agent, an appraisal review board shall schedule hearings on
7-34 protests concerning up to 20 designated properties on the same day.
7-35 The designated properties must be identified in the same notice of
7-36 protest, and the notice must contain in boldfaced type the
7-37 statement "request for same-day protest hearings." A property
7-38 owner or designated agent may not file more than one request under
7-39 this subsection with the appraisal review board in the same tax
7-40 year. The appraisal review board may schedule hearings on protests
7-41 concerning more than 20 properties filed by the same property owner
7-42 or designated agent and may use different panels to conduct the
7-43 hearings based on the board ’s customary scheduling. The appraisal
7-44 review board may follow the practices customarily used by the board
7-45 in the scheduling of hearings under this subsection.
7-46 (k)AAIf an appraisal review board sits in panels to conduct
7-47 protest hearings, protests shall be randomly assigned to panels,
7-48 except that the board may consider the type of property subject to
7-49 the protest or the ground of the protest for the purpose of using
7-50 the expertise of a particular panel in hearing protests regarding
7-51 particular types of property or based on particular grounds. If a
7-52 protest is scheduled to be heard by a particular panel, the protest
7-53 may not be reassigned to another panel without the consent of the
7-54 property owner or designated agent. If the appraisal review board
7-55 has cause to reassign a protest to another panel, a property owner
7-56 or designated agent may agree to reassignment of the protest or may
7-57 request that the hearing on the protest be postponed. The board
7-58 shall postpone the hearing on that request. A change of members of
7-59 a panel because of a conflict of interest, illness, or inability to
7-60 continue participating in hearings for the remainder of the day
7-61 does not constitute reassignment of a protest to another panel.
7-62 (l)AAA property owner, attorney, or agent offering evidence
7-63 or argument in support of a protest brought under Section
7-64 41.41(a)(1) or (2) of this code is not subject to Chapter 1103,
7-65 Occupations Code, unless the person offering the evidence or
7-66 argument states that the person is offering evidence or argument as
7-67 a person holding a license or certificate under Chapter 1103,
7-68 Occupations Code. A person holding a license or certificate under
7-69 Chapter 1103, Occupations Code, shall state the capacity in which
7
C.S.H.B.ANo.A585
8-1 the person is appearing before the appraisal review board.
8-2 (m)AAAn appraisal district or appraisal review board may not
8-3 make decisions with regard to membership on a panel or chairmanship
8-4 of a panel based on a member ’s voting record in previous protests.
8-5 (n)AAA request for postponement of a hearing must contain the
8-6 mailing address and e-mail address of the person requesting the
8-7 postponement. An appraisal review board shall respond in writing
8-8 or by e-mail to a request for postponement of a hearing not later
8-9 than the seventh day after the date of receipt of the request.
8-10 (o)AAThe chairman of an appraisal review board or a member
8-11 designated by the chairman may make decisions with regard to the
8-12 scheduling or postponement of a hearing. The chief appraiser or a
8-13 person designated by the chief appraiser may agree to a
8-14 postponement of an appraisal review board hearing.
8-15 SECTIONA15.AASection 41A.03(a), Tax Code, is amended to read
8-16 as follows:
8-17 (a)AATo appeal an appraisal review board order under this
8-18 chapter, a property owner must file with the appraisal district not
8-19 later than the 45th day after the date the property owner receives
8-20 notice of the order:
8-21 (1)AAa completed request for binding arbitration under
8-22 this chapter in the form prescribed by Section 41A.04; and
8-23 (2)AAan arbitration deposit made payable to the
8-24 comptroller in the amount of[:
8-25 [(A)]AA$500[; or
8-26 [(B)AA$250, if the property owner requests
8-27 expedited arbitration under Section 41A.031].
8-28 SECTIONA16.AASections 42.08(b), (b-1), and (c), Tax Code,
8-29 are amended to read as follows:
8-30 (b)AAExcept as provided in Subsection (d), a property owner
8-31 who appeals as provided by this chapter must pay taxes on the
8-32 property subject to the appeal in the amount required by this
8-33 subsection before the delinquency date or the property owner
8-34 forfeits the right to proceed to a final determination of the
8-35 appeal. The amount of taxes the property owner must pay on the
8-36 property before the delinquency date to comply with this subsection
8-37 is the lesser of:
8-38 (1)AAthe amount of taxes due on the portion of the
8-39 taxable value of the property that is not in dispute; [or]
8-40 (2)AAthe amount of taxes due on the property under the
8-41 order from which the appeal is taken; or
8-42 (3)AAthe amount of taxes imposed on the property in the
8-43 preceding tax year.
8-44 (b-1)AAThis subsection applies only to an appeal in which the
8-45 property owner elects to pay the amount of taxes described by
8-46 Subsection (b)(1).AAThe appeal filed by the property owner must be
8-47 accompanied by a statement in writing of the amount of taxes the
8-48 property owner proposes to pay. The failure to provide the
8-49 statement required by this subsection is not a jurisdictional
8-50 error.
8-51 (c)AAA property owner that pays an amount of taxes greater
8-52 than that required by Subsection (b) does not forfeit the property
8-53 owner ’s right to a final determination of the appeal by making the
8-54 payment. The property owner may pay an additional amount of taxes
8-55 at any time. If the property owner files a timely appeal under this
8-56 chapter, taxes paid on the property are considered paid under
8-57 protest, even if paid before the appeal is filed. If the taxes are
8-58 subject to the split-payment option provided by Section 31.03, the
8-59 property owner may comply with Subsection (b) of this section by
8-60 paying one-half of the amount otherwise required to be paid under
8-61 that subsection before December 1 and paying the remaining one-half
8-62 of that amount before July 1 of the following year.
8-63 SECTIONA17.AASection 42.21, Tax Code, is amended by adding
8-64 Subsections (f), (g), and (h) to read as follows:
8-65 (f)AAA petition filed by an owner or lessee of property may
8-66 include multiple properties that are owned or leased by the same
8-67 person and are of a similar type or are part of the same economic
8-68 unit and would typically sell as a single property. If a petition
8-69 is filed by multiple plaintiffs or includes multiple properties
8
C.S.H.B.ANo.A585
9-1 that are not of a similar type, are not part of the same economic
9-2 unit, or are part of the same economic unit but would not typically
9-3 sell as a single property, the court may on motion and a showing of
9-4 good cause sever the plaintiffs or the properties.
9-5 (g)AAA petition filed by an owner or lessee of property may be
9-6 amended to include additional properties in the same county that
9-7 are owned or leased by the same person, are of a similar type as the
9-8 property originally involved in the appeal or are part of the same
9-9 economic unit as the property originally involved in the appeal and
9-10 would typically sell as a single property, and are the subject of an
9-11 appraisal review board order issued in the same year as the order
9-12 that is the subject of the original appeal. The amendment must be
9-13 filed within the period during which a petition for review of the
9-14 appraisal review board order pertaining to the additional
9-15 properties would be required to be filed under Subsection (a).
9-16 (h)AAThe court has jurisdiction over an appeal under this
9-17 chapter brought on behalf of a property owner or lessee and the
9-18 owner or lessee is considered to have exhausted the owner ’s or
9-19 lessee ’s administrative remedies regardless of whether the
9-20 petition correctly identifies the plaintiff as the owner or lessee
9-21 of the property or correctly describes the property so long as the
9-22 property was the subject of an appraisal review board order, the
9-23 petition was filed within the period required by Subsection (a),
9-24 and the petition provides sufficient information to identify the
9-25 property that is the subject of the petition. Whether the plaintiff
9-26 is the proper party to bring the petition or whether the property
9-27 needs to be further identified or described must be addressed by
9-28 means of a special exception and correction of the petition by
9-29 amendment as authorized by Subsection (e) and may not be the subject
9-30 of a plea to the jurisdiction or a claim that the plaintiff has
9-31 failed to exhaust the plaintiff ’s administrative remedies. If the
9-32 petition is amended to add a plaintiff, the court on motion shall
9-33 enter a docket control order to provide proper deadlines in
9-34 response to the addition of the plaintiff.
9-35 SECTIONA18.AASection 42.23, Tax Code, is amended by adding
9-36 Subsection (h) to read as follows:
9-37 (h)AAEvidence, argument, or other testimony offered at an
9-38 appraisal review board hearing by a property owner or agent is not
9-39 admissible in an appeal under this chapter unless:
9-40 (1)AAthe evidence, argument, or other testimony is
9-41 offered to demonstrate that there is sufficient evidence to deny a
9-42 no-evidence motion for summary judgment filed by a party to the
9-43 appeal or is necessary for the determination of the merits of a
9-44 motion for summary judgment filed on another ground;
9-45 (2)AAthe property owner or agent is designated as a
9-46 witness for purposes of trial and the testimony offered at the
9-47 appraisal review board hearing is offered for impeachment purposes;
9-48 or
9-49 (3)AAthe evidence is the plaintiff ’s testimony at the
9-50 appraisal review board hearing as to the value of the property.
9-51 SECTIONA19.AASection 42.29(a), Tax Code, is amended to read
9-52 as follows:
9-53 (a)AAA property owner who prevails in an appeal to the court
9-54 under Section 42.25 or 42.26, [or] in an appeal to the court of a
9-55 determination of an appraisal review board on a motion filed under
9-56 Section 25.25, or in an appeal to the court of a determination of an
9-57 appraisal review board of a protest of the denial in whole or in
9-58 part of an exemption under Section 11.17, 11.22, 11.23, 11.231, or
9-59 11.24 may be awarded reasonable attorney ’s fees.AAThe amount of the
9-60 award may not exceed the greater of:
9-61 (1)AA$15,000; or
9-62 (2)AA20 percent of the total amount by which the
9-63 property owner ’s tax liability is reduced as a result of the appeal.
9-64 SECTIONA20.AASection 41A.031, Tax Code, is repealed.
9-65 SECTIONA21.AAThe changes in law made by this Act apply to a
9-66 proceeding that is pending on the effective date of this Act or is
9-67 filed on or after the effective date of this Act.
9-68 SECTIONA22.AASection 6.035, Tax Code, as amended by this Act,
9-69 does not affect the eligibility of an individual serving on an
9
C.S.H.B.ANo.A585
10-1 appraisal district board of directors immediately before the
10-2 effective date of this Act to continue to serve on the appraisal
10-3 district board of directors for the term to which the member was
10-4 appointed.
10-5 SECTIONA23.AA(a) As soon as practicable on or after January
10-6 1, 2014, the local administrative district judge or the judge ’s
10-7 designee in a county described by Section 6.41(d-1), Tax Code, as
10-8 amended by this Act, in the manner provided by Section 6.41, Tax
10-9 Code, shall appoint the members of the appraisal review board for
10-10 the appraisal district established in the county. In making the
10-11 initial appointments, the judge or judge ’s designee shall designate
10-12 those members who serve terms of one year as necessary to comply
10-13 with Section 6.41(e), Tax Code.
10-14 (b)AAThe changes made to Section 6.41, Tax Code, by this Act
10-15 apply only to the appointment of appraisal review board members to
10-16 terms beginning on or after January 1, 2014. This Act does not
10-17 affect the term of an appraisal review board member serving on
10-18 December 31, 2013, if the member was appointed before January 1,
10-19 2014, to a term that began before December 31, 2013, and expires
10-20 December 31, 2014.
10-21 SECTIONA24.AASection 6.411, Tax Code, as amended by this Act,
10-22 applies only to an offense committed on or after the effective date
10-23 of this Act. An offense committed before the effective date of this
10-24 Act is governed by the law in effect on the date the offense was
10-25 committed, and the former law is continued in effect for that
10-26 purpose. For purposes of this section, an offense was committed
10-27 before the effective date of this Act if any element of the offense
10-28 occurred before that date.
10-29 SECTIONA25.AASections 22.01 and 22.24, Tax Code, as amended
10-30 by this Act, apply only to the rendition of property for ad valorem
10-31 tax purposes for a tax year that begins on or after January 1, 2014.
10-32 SECTIONA26.AA(a) Except as provided by Subsection (b) of
10-33 this section:
10-34 (1)AAthis Act takes effect immediately if it receives a
10-35 vote of two-thirds of all the members elected to each house, as
10-36 provided by Section 39, Article III, Texas Constitution; and
10-37 (2)AAif this Act does not receive the vote necessary for
10-38 immediate effect, this Act takes effect September 1, 2013.
10-39 (b)AASections 1, 2, 4, 5, 8, 9, 13, 14, and 25 of this Act take
10-40 effect January 1, 2014.
10-41 * * * * *
10
TAB 6
Ê
cAusE No.20t2-34688
n Fsrl
HARRIS COUNTY APPRAISAL IN THE DISTRICT COURT
DISTRICT,
Plaintiff,
v 55Ih JUDICIAL DISTRICT
TEXAS WORKFORCE COMMISSION, ef
.al,
HARRTS COUNTY, TEXAS
-u Defendants.
3 ¡nl ÐeN\ut l,-
F,e 5ü
LÈ.o= oRDER Cn¡W+I¡¡G OnrnnUnXtS' nnotton *O*
*-9 Pã SUMMARY JUDGM.ENT
Il -:o F
RcEås
olr
sÌ h o
5öo Fq The Court considered the Texas V/orkforce Commission's (TìWC) Motion for
e Ë'i*
sO,l .c(Ec>
ìoxr¡Joo Summary Judgment and Harris County Appraisal Districts (HCAD) Amended Motion for
Summary Judgment in the above-referenced cause. HCAD challenged TWC
administrative decisions regarding unemployment benefits claims filed by the T\ilC's co-
defendants by seeking judicial review under the substantial evidence trial de novo
standard of review.
aCr\MrF
-
After considering the summary judgment evidence and arguments presented, the
srha¡i/r
Court fìndsidfavonof the TWC and a^ffilme the TWC's decisions.
IT IS THEREFORE, ORDERED, ADJUDGED AI\D DECREED that the
Ðø n l¿ ro.
TWC's Motion for Summary Judgment is ion
f
Wo.kfer
ffiiîilïi:ti,ffii3jli
Order on Cross Motions for Summary Judgment
864
$4,v,
S wÅ^t'
-N rt/.,/
All costs shall be borne by the lncurfl lslsa
disposing of all claims and all parties. All
SIGNED this day, fv\w I ,2014
WN
U
JU ING
)
Order on Cross Motions for Summary Judgment
865
4t14t20't4 5 38 01 PM
Chfls Danrel - Drslflct Clerk Harns County
Envelope No 991336
By JONATHAN PATTON
cAusE No.2012-34688
IIARRIS COUNTY APPRAISAL $ IN THE DISTRICT COURT OF
DISTRICT, $
Plaintiff,
$
$
1)
$ lv
vs. $ HARRIS COUNTY, TEXAS
$
TEXAS WORKFORCE COMMISSTON $
ct. al, $
$
Defendant $ 55TH JUDICIAL DISTRICT
ORDER
On the day of 2014, the Courl heard the Amended l{arris
County r\ppraisal District's Motion for Sumrnary Judgment and the Court, having considercd thc
Motion, Rcsponses and arguments of counsel is of the opinion that the Motion should, in all
things, bc GRANTED. It is therefore.
ORDERED that the Harris County Appraisal District's Amended Motion for Summary
Judgment is hereby GRANTED.
SIGNED and entered on this íauv or ¡Àr.r,.,¡- ,2014
U
Presiding
866
TAB 7
Weistlaw
V.T.C.A., Labor Code S 212.201 Page 1
c
Effective: ISee Text Amendmentsl
Vernon's Texas Statutes and Codes Annotated Currentness
Labor Code (Refs & Annos)
Title 4. Employment Services and Unemployment
Subtitle A. Texas Unemployment Compensation Act
Rtâ
Chapter 212. Dispute Resolution
ÑEl
SubchaDter E. Judicial Review of Commission Decision
'+'+ $ 212.201. Commencement of Judicial Review; Defendants
(a) A party aggrieved by a final decision of the commission may obtain judicial review of the decision by bringing an
action in a court of competent jurisdiction for review of the decision against the commission on or after the date on
which the decision is final, and not later than the 14th day after that date.
(b) Each other party to the proceeding before the commission must be made a defendant in an action under this sub-
chapter.
cREDTT(S)
Acts 1993. 73rd Leg., ch. 269. I 1. eff. Sep!. l. 1993.
Current through the end of the 2011 Regular Session and First Called Session of the 82nd Legislature
(c) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
@2012 Thornson Reuters. No Clairn to Orig. US Gov. Works
TAB 8
Westlaw
V.T.C.A., Labor Code ç 212.202 Page I
c
Effective: June 20, 2003
Vernon's Texas Statutes and Codes Annotated Currentness
--Labor Code (Refs & Annos)
Title 4. Employment Services and Unemployment
Subtitle A. Texas Unemployment Compensation Act
ÑEl
Chapter 212. Dispute Resolution
\B Subchapter E. Judicial Review of Commission Decision
'+'+ S 212.202. Standard of Judicial Review; Exceptions Not Necessary
(a) Judicial review under this subchapter is by trial de novo based on the substantial evidence rule.
(b) It is not necessary in a judicial proceeding under this subchapter to enter exceptions to the rulings of the com-
mission.
CREDTT(S)
Acts 1993. 73rd Leg.. ch. 269. I 1. eff. Sept. l. 1993. Amended by Acts 2003.781h Leg.. ch. 1208. $ 1. eff. June 20.
2003.
Current through the end of the 2011 Regular Session and First Called Session of the 82nd Legislature
(c)2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
@2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
TAB 9
We'stlaw
V.T.C.A., Labor Code $ 201.041 Page 1
c
Effective: [See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness
Labor Code (Refs & Annos)
Title 4. Employment Services and Unemployment
Subtitle A. Texas Unemployment Compensation Act
\E Chapter 201. Unemployment Compensation Act--General Provisions
$l Subchapter D. Definition of Employment
-+-+ $ 201.041. General Definition of Employment
In this subtitle, "employment" means a service, including service in interstate commerce, performed by an individual
for wages or under an express or implied contract of hire, unless it is shown to the satisfaction of the commission that
the individual's performance of the service has been and will continue to be free from control or direction under the
contract and in fact.
CREDTT(S)
Acts 1993, 73rdLeg., ch.269, $ 1, eff. Sept. l, 1993
REVISOR'S NOTE
2006 Main Volume
The source law refers to a "written or oral, express or implied" confact. The reference to "written or oral"
is omitted from the revised law because "written or oral" is included within the meaning of "express."
HISTORICAL AND STATUTORY NOTES
2006 Main Volume
Prior Laws
Acts 1936, 44fhLeg.,3rd C.S., p.1993, ch.482, $ 19
@ 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Labor Code $ 201.041 Page2
Acts 1937 , 45thLeg., p. 121, ch. 67, $ 7
Acts 1939, 46thLeg., p.436, $ 10
Acts 1941, 47thLeg., p. 1378, ch. 625, $ 1
Acts 1943, 48th Leg., p. 585, ch. 343, $ 7
ActS 1945, 49thLeg., p. 589, ch.347, $ 7
Acts 1949, 5lst Leg., p.282, ch. 148, $ 8.
Acts 1955, 54thLeg.,p.399, ch. 116, $ 13
Acts 1957, 55th Leg., p. 1350, ch. 460, $ I I
Acts 1961, 57thLeg.,p.1129, ch. 513, $ 2
Acts 1965,59th Leg., p. 318, ch. 150, $ 6.
Acts 1967,60th Leg., p. 697, ch. 287, $ 8.
Acts 1971,62ndLeg.,p.2738,ch.892, $$ 10, 1l
Acts 797'7,65th Leg., p.994, ch. 368, $$ l5 to 19
Acts 1979,661h Leg., p. 384, ch. 175
Acts 1981, 61thLeg., p. 17, ch. 12, S2
Acts 1982, 67thLeg.,3rd C.S., p. 2, ch. 2, $ 5
Acts 1983,68th Leg., p.2877, ch.489, $ 1
Acrs l985,69thLeg., ch.67, $$ 1,2.
Acts 1985,69th Leg., ch. 385, $ I
Acts 1991,72ndLeg., ch. 812, $ I
A2U4 Thomson Reuters. No Claim to Orig. US Gov. Works
V.T.C.A., Labor Code $ 201.041 Page 3
Vernon's Ann.Civ.St. art. 5221b-17(gX1 ).
LIBRARY REFERENCES
2006 Main Volume
Unemployment Compensat ion G 1 6, 29
Westlãw Topic No. 392T. '
RESEARCH REFERENCES
2014 Electronic Pocket Part Update
Encyclopedias
103 Am. Jur. Proof of Facts 3d l, Proving Independent Contractor Status in Challenging Unemployment Insurance
and Vy'orkers' Compensation Assessments.
TX Jur. 3d Employer and Employee $ 389, Employment Defined.
NOTES OF DECISIONS
In general I
Independent contractors 2
Review 3
1. In general
An "employer" is obligated to contribute to the unemployment compensation fund "on wages for employment paid,"
in accordance with rules adopted by the Texas Vy'orkforce Cofnmission. Critical Health Connection, Inc. v. Texas
lùy'orkforce Com'n (App. 3 Dist.201l) 338 S.V/.3d 758. Taxation C:;Þ:ZSt(t)
Medical service providers, whom medical staffing company referred to its client hospitals and nursing homes in order
to fulfill their short-term staffìng needs, were "employees," rather than independent contractors, under Workforce
Commission's "right-to-control" test and thus, company was required to contribute on their behalf to unemployment
compensation fund; providers did not share in any profits or losses or otherwise invest in company's business, and
once a provider accepted a shift with a client, she was provided equipment necessary to complete assignment and had
no discretion about when or where work would be performed. Critical Health Connection, Inc. v. Texas Workforce
Com'n (App. 3 Dist. 2011) 338 S.V/.3d 758. Taxation C=4328S
A 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Labor Code $ 201.041 Page 4
Testimony of corporate officers that salesperson was free of direction and control and that she could have hired
someone to perform her duties was substantial evidence that her services did not qualifl as employment for purposes
of unemployment compensation. Dozier v. Texas Employment Com'n (App. 14 Dist. 2001) 4l S.W.3d 304. Unem-
ployment Compensation æ403
The definition of "employment", in statute presupposes remuneration for such services. State v. Kenyon, Inc
(Civ.App. l94l) 153 S.W.2d 195, error refused.
Where in a suit by the Unemployment Compensation Commission, under statute, nothing showed either a payment of
wages or services performed under a contract df hire, the commission could not rest its case solely upon the fact that
the company failed to make any showing that the services involved did not constitute employment under the act.
Op.Atty.Gen. 1939, No. 0-1 337.
Where an owner of a department store leased a department within store, individuals employed to perform services in
leased department are wjthin employment of lessor within meaning of term "employment" as used in Texas Unem-
ployment Compensation Act. Op.Atty .Gen.1942, No. 0-42 12.
2. Independent contractors
Where owner of motor carrier business hired truck drivers and paid each driver 25o/o commission on gross revenue of
truck he drove and paid all expenses ofoperating truck and bore all losses when they occurred, and where under art.
9l lb and rules promulgated by Railroad Commission, owner was compelled to retain control of trucks and drivers and
drivers had no legal authority to operate trucks as independent contractors, truck drivers were employees and not
independent contractors and owner was required to contribute to state unemployment compensation fund. Johnston v.
State (Civ.App.1957) 303 S.V/.2d 520,ref.n,r.e. Taxation Þ¡ZgS
Persons doing insect extemination work were "employees" for whom their employer was required to remit unem-
ployment taxes and were not "independent contractors" where operator of the business made all basic decisions, what
equipment would be used, what chemicals were to be applied, prices to be charged, advertising to be done, what
insurance would be carried, and how deferred payments would be carried, and two of three classes of workmen re-
ceived salaries while third class was paid according to work done. Merchant v. State (Civ.App. 1964)379 5.W.2d924.
Taxation C;;}:zss
Insurance adjusters were independent contractors, where work done by adjusters required some special skill, they had
their own clients, they did their own work without direction from adjusting business, they kept their own hours, they
were not paid on a claim file until work was done on file and they were not carried on social security and income tax
withholding rolls of adjusting business, and thus adjusting business was not liable for unemployment taxes. Bamett v.
Texas Employment Commission (Civ.App. ß7$ 510 S.W.2d 361,ref. n.r.e. Taxation C;;a32gt
3. Review
@ 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.T.C.A., Labor Code $ 201.041 Page 5
Upon judicial review, presuming substantial evidence and indulging all inferences in favor of Texas Workforce
Commission's discretion, it takes very little evidence to overcome the presumption of employment, for purposes of
determining entitlement to unemployment compensation benefits. Dozier v. Texas Employment Com'n (App. l4 Dist.
200 1) 4 1 S.W.3d 3 04. Unemployment Compensatio n G +gS (Z)
V. T. C. 4., Labor Code $ 201.041, TX LABOR $ 201.041
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C)2014 Thomson Reuters. No Claim to Orig. US Gov. Works
END OF DOCUMENT
@ 2014 Tholnson Reuters. No Claim to Orig. US Gov. Works
TAB 10
We.stlaw
40 TAC $ 821.5 Page I
Tex. Admin. Code tit.40, $ 821.5
c -r.f S 821.5. Employment Status: Em-
ployee or Independent Contractor
Texas Administrative Code Currentness
Title 40. Social Services and Assistance The Commission adopts the following form, Form
P art 20. Texas Workforce Commission C-8, as its off,icial guideline for use in determining
Chapter 821. Texas Payday Rules employment status.
Ñtä
Subchapter A. General Provisions
A2012 Thomson Reuters. No Claim to Orig. US Gov. Works
40 TAC $ 821.5 Page2
Tex. Admin. Code tit.40, $ 821.5
Figure: 40 TAC $821.5
EMPLOYMENT STATUS- A COMPARATNTE APPROACH
U¡rder tlre common law test, aworker is an employee if the Depending upo¡r üre type ofbuiness ad thc scrviccs
prchaser of thar uorker's service h6 fhe rigùt o direct or pcrfornred, not all Ð commsr law factorc may apply. ln addition,
conBol the worker, both asto the f¡nal results and as to the tÞ weiglt assigned to a specif¡c fætor may vary depøding on the
deteils ofwlæû wlrcre, and howtlre umrk isdone. Connol need facts ofthe cas¿.
rþt actually bc cxcrciscd; rathcr, if lhc scrrict rccipicnt has thc If
an cmploymcnt rclatiorship cxists, itdoes not malærthat
rEåf to contol, qrployment may þ shown. tlæ employee iscallod something dift¡ent, such as agcng conract
laborer, subconræror, or indepcndent contractor.
r. INSTRUCTIONS: rI. ORALOR IVRITTENREPORTS:
An Employee receives ¡nsmrct¡ons abottt when, whcre and ,4r¡ Employ€Ê nay be required tD sr¡bmit ¡egular oral or
how tlæ wo¡k is to be performed. wntten reports about the work in pogæs,
An h&pen&nlContrætç dæs tlcl'ob hßor her ownway ,4n In&pendem Cot*ætor ß usuolþ rct requlred to flbmll
withfen, iÍØry, inttrt ctionl as ,o üp details or netløds of regular orul orvrittenrepoßabod lhe wæh h progræs.
the'worft
2. TRAINING: 12. PAYMENT BYTHE HOUR, IVEEKOR MONTH:
Ernployees are oflcn tained by a more experienced An Bnployee is typically paid þ ûe employer in rcgular
a nployec or aterequircd to aíetd meetings or take ûaining amoùrls al statcd inærvals, snch æ by tlæ how or wec*.
coì¡fses. Àn ltdepet&nt Connacør ts numally paid by the job,
,4n l¡*pendettt Contactor uw his or her own tnerhd¡ eitheranegofiatedflat røø or tpn nbntssian ofa btd
ad tlt¿rs wed not receite tøinitgfron the pvclwser of
ilpse æniæs,
3. INTEGRATIOFI: 13. PAYMEMOFBUSINESS &TRAVELÐOFÀSE:
Scrvices of an Employec are rsully møged into the lirm's An Employer's bsinæs ar¡d travcl expcrscs are either paid
overall operation; tlæ firm's succcs depends on those directly or rcimbursed by thc employer.
Ernployee services. Independentcontroetors tromølly pay all of their own
An lt&pø&nt Cøta clot's s¿mieesøe unnlly sepale business atd lrayel acpenses witlrrul reimbwsemeú.
ftøn ile client's business atd a¡e wl integÍaled or merged
inlo ll.
4. SERVICES PF.PSfINÀI T,Y: r¡ FllnNlslrrNlìTfnt.s B(XIIPMENT:
An Employee's ærvices mrm be rendered pe¡'sonalþ; Ernployees are ñmished all necessary tools, materials and
Employees do rnl hire their own substitutes or delegae cquipment by dæir cmployer.
worlc to them. An IndeperùntContrætor ordlmrilypor:tdes all of tle
.,4 true Wpn&il Contætot ß able to assign atntler to tools ød equtpntent necesw? to ca nplete tlc job.
dotlre joÞ inhß or lwplæeandtxedrctprfæn æmices
personally.
5. HIRING. & PAYINGIfEI,PER^S: 15. SIGNIFICANT IIWESIMENT:
An Employee may e.aasa fo¡e¡nan for the cnploye¡ buÈ if An Ernployce gcncrally has little orno invest¡nent in tl¡e
so, hclpcrsarc paid widr thccmploycr's funds. business. Instead an Ernployee is economirally dcprdent
húpn&nt &rwactors ælect, hire, pøy ærd stqewße oty on dæ employer.
helpers rred øú øe responsible îor the resia of the Trae lrúrytúent Contrætors uwally lwe a stbstantial
lclps'lahor. litwtial ilntesonent in trpir ind¿pettdent busitæss.
6^ COI{TINUING tÁ. w'.Ârf7.r pRof'rT flR
An Employee oîcn continues to work for the same An Ernployee docs not ordinarily realize a profrt or loss
employer rnonth aûer month oryearafter yea. in tl¡c busincss. Rathcr, Employees are paid for services
An Indepen&n Cøtaetor is trsralþ hired lo one job ú of rendeæd.
llnìted or indefrnìte dú'atiaß @d llas no speclaliø ot Ån Indepetderu Cowræør can either realize a profit ø
cot linuing work ntfer a loss dependrg on the mûngemem of apenses
ø¡drew¡nzs,
7. SETTI(XJRSOFÌVORIC 17. WORKING FORMORE TÍIAN ONE FIRIUAT A
TIII&
*on
An Employee may work call" or during hours and days An Employee ordinarily works for one ernployø at a time
as set þ the anployer. and may be prolribited frun joining a competitor.
Å tae Independent Contræto¡ ìs the masler olhts or her An Independen Cowractor oftenworltîq more thætone
own time ød works tlc doys od hovs he or slæ cløoses. client or Jìrm at the sat te tiilr4 and is ruit subject to a non-
comrytit¡on rule.
@2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
40 TAC S 821.5 Page 3
Tex. Admin. Code tit. 40, $ 821.5
8. FI'LLÎIME REQI,IIRDD: I& MÁKTNG SERWCE AVAII.¡IßLE TO THE PUBLIC:
An Employce ordinarily devoæs frrll-li¡nc service to the An Ernploycc docs not rnake his or hcr serviccs availablc ûo
employer, or tlre employer may have a priority on thc the public cxcepl through tln employer's company.
Empþcc'stimc. An ltúependen Corwactor nøy dvertise, cøry busi¡css
A næ lr&pedentCqtætorcanpt Þ reguirdødewte cards, høtg ow a shingle or løId a seryate buslncss
full-nme cmice lo otæ fitm exchuiveþ. licenæ.
9. IOCATION }VHERE PËRFORMED: 19. RIGIIT TO DISCTT,IRGE 1VITIIOUT LTABILITYI
Ernploymentis indic¿¡ed if the ønployerhæthe rigÛttto An Employee can be discharged at any time \r'ithoü liab¡l¡ty
mandate where serviccs arc pcrformed on tlre employer's part.
hdepúen Connætors ordimrily worhwhere tlæy Iltleworkmeels tlæ contræt terms, at lndependent
cløose. The væþlæe nay be mcyfrmt ilæ client's Corûætor comot be fired without ltability for breæh S
premlses conErrcl,
sf"T: æ. RIGfff TOQUTT }VüH@TIIAB&IIIY:
An Eraptoyee perforns senices in tlæ ordø or seguence set An Employee may quitwork at any time withor* liabilityon
by tlæ cmployer. This shows conbol by lÞ employer. the Employcc's part.
A t.e lr&pcúerrt CanÞactø is corcenæd onþ with Iæ An ln&pendent Cotnæw is legalþ r*pottsiblefor job
tìnßhed prodtat ûnd se¡s hìs æ t êr øttn ortler or *Eence complelion and, on quitlir;ry., beconesliablefor breach ot
olwork canttlcr.
C-8(94) Inv. No 51t975
Source: The provisions ofthis $ 821.5 adopted to be
effective June l, 1998,23 TexReg 5732; amended to
be effective March 13,2007,32 TexReg 1328.
40 TAC $ 821.5, 40 TX ADC $ 821.5
Current through August 31, 2012
Copr. (C) 2012. All rights reserved.
END OF DOCUMENT
@2012 Thomson Reuters. No Claim to Orig. US Gov. Works.