Texas getting concession moratorium with exemptions for regional control - TxDOT faces wipeout

2007-04-12

TOLLROADSnews

Texas legislators seem to be working toward a moratorium on new private toll concessions with exemptions for areas where concessions have local support - notably the Dallas-Ft Worth metro area.

In those areas regional organizations will have control. TxDOT is emasculated by the House bill which passed overwhelmingly - 130 or so to a handful in the final vote.

The freezers moved their action Tuesday to the full Texas House with HB1892. Initially a bill to assert the primacy of Harris County (Houston) Toll Road Authority (HCTRA) over the state DOT (TxDOT), HB1892 had major provisions of the original moratorium bills HB2772/SB1267 grafted onto it by Lois Kolkhorst (Repub):

• a moratorium on new toll concessions through Sept 1 2009

• a legislative study committee on concessions to report Dec 1 2008

Toll concessions are too simple a term for Texas legislators who describe them as "a comprehensive development agreement entered into with a private participant by a toll project entity for the acquisition, design, construction, financing, operation or maintenance of a toll project permitting the private participant to operate the toll project or collect revenue from the toll project."

The grafting of the moratorium onto HB1892 enabled the freezers to bypass Mike Krusee's House Transportation Committee and go straight to the floor of the House this week where they won a smashing victory Wednesday, 123/15. (p1682)

Almost alone Krusee fought the bill, arguing that the Kolkhorst amendment was out of order since it changed the original purpose of the bill. He was overruled by the speaker. Dallas-Ft Worth area pols gained support for an amendment to Kolkhorst apparently exempting projects in their area.

In addition amendments gave counties and regional authorities the primary role in tollroad development, and giving them control over state highways if they choose to assert it.

The bill says: "Notwithstanding any other law, for a project under this chapter, a county may use any county property, state highway right-of-way, and access to the state highway system regardless of when or how such property, right-of-way, or access was acquired."

Encumbrances

As Krusee pointed out in a speech these radical provisions in the bill give counties effective control over the state highway system. This could make it impossible to for TxDOT to do any public authority tolling:

"It creates an encumbrance, you (TxDOT) won't be able to sell bonds... when the state wants to sell bonds, the bond rating agency will look at this and they will see, you can't control... access. You can't control (anything)... It's an encumbrance, (the state) won't be able to sell bonds."

The intention of amendments is to allow SH121 to proceed but Krusee says SH121 can't be done under the bill because of the encumbrance issue. The North Texas Tollway Authority meanwhile is preparing a bid to build SH121 challenging the tentative toll concession agreement reached between Cintra/JPM and TxDOT/NCTCOG.

Senate

SB792 an identical bill to the original HB1892 giving HCTRA primacy has been introduced in the Senate and has got to the transport committee. It remains to be seen if the Senate will follow the same course as the House and include similar moratorium provisions. The speaker Lt Gov Dewhurst favors this. (We wrote incorrectly in an earlier report that Dewhurst is an ally of Gov Perry. On the contrary he is a Perry rival.)

No one knows where Senate transport committee chair John Carona stands, least of all Carona who has pronounced himself for, then against, and then for a moratorium. He is reportedly against again today. Tomorrow?

The major thrust of HB1892 is to emasculate TxDOT by putting a stop to its concession program and casting doubt on its ability to continue with any public toll roads by giving counties the right to take state highways.

TxDOT and the decisionmaking Texas Transportation Commission (TTC) come up for reauthorization in 2009 under 'sunset' laws. These laws cause TxDOT/TTC to expire unless their continued existence is positively legislated.

One local observer tells us those sunset dates for TxDOT/TTC dictated the Sept 1 2009 date for the expiry of the concessions moratorium. He says TxDOT/TTC face the real prospect of being shut down in 2009 with the current mood in the legislature or at least much reduced in power. Regions and counties might gain the power of roads at TxDOT's expense.

Six weeks left

Meanwhile there are six weeks left in the current legislative session to its adjournment on May 28. Prospects are for some version of SB1892 being passed by the state Senate. Governor Perry is presently expected to veto the moratorium bill but the freezers clearly have the numbers to do the 2/3rds votes needed to override that veto.

 

TOLLROADSnews 2007-04-12