78R4353 CLG-D

By:  Dukes                                                        H.B. No. 2398


A BILL TO BE ENTITLED
AN ACT
relating to fiscal accountability for the receipt of a subsidy or other form of assistance for economic development purposes; providing a civil penalty. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subtitle F, Title 4, Government Code, is amended by adding Chapter 489 to read as follows:
CHAPTER 489. ECONOMIC DEVELOPMENT AND FISCAL ACCOUNTABILITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 489.001. DEFINITIONS. In this chapter: (1) "Corporate parent" means a person that owns or controls 50 percent or more of a recipient corporation. (2) "Date of the subsidy" means the date on which the recipient corporation receives the development subsidy, except that: (A) if the development subsidy involves the purchase of new equipment, the date of the subsidy is the date on which the recipient corporation places the equipment into service; or (B) if the development subsidy is for an improvement made to property, the date of the subsidy is the earlier of: (i) the date on which the last improvement to the property is made; or (ii) the date on which the recipient corporation occupies the property. (3) "Department" means the Texas Department of Economic Development or its successor. (4) "Development subsidy" means an expenditure of public money or financial assistance in the form of a bond, grant, loan at a rate below the commercial rate, loan guarantee, tax credit, tax increment financing, fee waiver, land price subsidy, matching funds, tax abatement, tax exemption, or tax reduction that is provided to a recipient corporation for economic development purposes. The term does not include: (A) financial assistance that is generally available to all businesses or to a general class of similar businesses; and (B) bonds issued to refund outstanding bonds. (5) "Full-time employee" means an employee who is normally scheduled to work at least 35 hours a week. (6) "Granting entity" means a state agency or local governmental entity that grants a development subsidy. (7) "Local governmental entity" means a county, municipality, or other political subdivision of this state and a municipally created economic development corporation, including a development corporation organized under the Development Corporation Act of 1979 (Article 5190.6, Vernon's Texas Civil Statutes). (8) "Part-time employee" means an employee who is not a full-time employee or temporary employee. (9) "Person" does not include a government or governmental subdivision or agency; (10) "Project" means any undertaking or work that the granting entity determines will result in new or expanded business development or opportunities or other types of economic development; (11) "Project site" means the site of a project for which a development subsidy is granted. (12) "Property-taxing entity" means an entity that imposes taxes on real or personal property in this state. (13) "Recipient corporation" means a person that receives a development subsidy from a granting entity. (14) "Small business" means a corporation that: (A) is formed to make a profit; (B) has fewer than 20 full-time employees or less than $1 million in annual gross receipts; and (C) does not have a subsidiary or corporate parent that has more than 20 full-time employees or more than $1 million in annual gross receipts. (15) "Temporary employee" means an individual employed on a temporary basis for the performance of services for an employer during regular employee absences, temporary skill shortages, seasonal work loads, special assignments and projects, and other similar work situations for a limited period. Sec. 489.002. PUBLIC RECORD; DISCLOSURE. A report or other document required to be prepared or maintained under this chapter, including an application, progress report, or recapture notice, and any related record or proceeding, is a public record subject to Chapter 552.
[Sections 489.003–489.100 reserved for expansion]
SUBCHAPTER B. DEVELOPMENT SUBSIDIES
Sec. 489.101. APPLICABILITY OF SUBCHAPTER TO CERTAIN DEVELOPMENT SUBSIDY AMOUNTS. Except as otherwise provided by this subchapter, this subchapter applies only to a development subsidy of more than $25,000. Sec. 489.102. APPLICATION. (a) To receive a development subsidy for a project, a person eligible for the subsidy must file a written application with the appropriate granting entity. The application must be on a form prescribed by the department and must contain: (1) an application tracking number provided by the granting entity; (2) the name, business address, and business phone number of the chief executive officer of the granting entity provided by the granting entity; (3) the name, business address, and business phone number of the chief executive officer of the applicant; (4) the name, business address, and business phone number of the chief executive officer of the applicant's corporate parent, if any; (5) the street address of the project site; (6) the three-digit North American industry classification system number of the project site; (7) the total number of full-time, part-time, and temporary employees employed by the applicant at the project site on the date of the application; (8) the total number of full-time, part-time, and temporary employees in this state that are employed by the corporate parent and each subsidiary of the applicant, if any, as of December 31 of the prior fiscal year; (9) the dollar amount or fair market value to the applicant of the development subsidy for which application is being made; (10) the number of the applicant's current full-time, part-time, and temporary employment positions at the project site for which the hourly wage is: (A) less than $6 an hour; (B) at least $6 an hour but less than $7; (C) at least $7 an hour but less than $8; (D) at least $8 an hour but less than $9; (E) at least $9 an hour but less than $10; (F) at least $10 an hour but less than $11; (G) at least $11 an hour but less than $12; (H) at least $12 an hour but less than $13; (I) at least $13 an hour but less than $14; or (J) at least $14 an hour; (11) the number of new full-time, part-time, and temporary employment positions to be created by the applicant at the project site for which the starting wage is: (A) less than $6 an hour; (B) at least $6 an hour but less than $7; (C) at least $7 an hour but less than $8; (D) at least $8 an hour but less than $9; (E) at least $9 an hour but less than $10; (F) at least $10 an hour but less than $11; (G) at least $11 an hour but less than $12; (H) at least $12 an hour but less than $13; (I) at least $13 an hour but less than $14; or (J) at least $14 an hour; (12) the average hourly wage to be paid to the applicant's current full-time, part-time, and temporary employees at the project site for each of the wage groups described by Subdivision (10); (13) the average hourly wage to be paid to the applicant's new full-time, part-time, and temporary employees at the project site for each of the wage groups described by Subdivision (11); (14) if the project site is located in a metropolitan statistical area, as defined by the federal office of management and budget, the average hourly wage paid to nonsupervisory employees in this state for the industries involved at the project, as established by the United States Bureau of Labor Statistics; (15) if the project site is located outside the boundaries of a metropolitan statistical area, the average weekly wage paid to nonsupervisory employees in the county for industries involved at the project, as established by the United States Department of Commerce; (16) the type and amount of health care coverage to be provided by the applicant to its employees not later than the 90th day after the commencement of employment at the project site, including any costs of the coverage to be paid by the employees; (17) a description of any other development subsidy for which the applicant has filed an application or is eligible for and interested in receiving, including the name of the granting entity for each subsidy; (18) a statement as to whether receipt of the development subsidy will cause a reduction in the workforce at any other project site or job site of the applicant or the applicant's corporate parent in this state or another state as a result of automation, merger, acquisition, corporate restructuring, or other business activity; and (19) a statement as to whether the project involves the relocation of jobs from another location and if it does involve the relocation of jobs, the number of full-time, part-time, and temporary employees to be relocated to the project site, and the location from which the employees are being transferred. (b) The application must include a signed sworn statement of the chief executive officer of the applicant certifying that the application has been reviewed by the officer for factual accuracy. Sec. 489.103. SUBSIDY LIMIT AND JOB QUALITY STANDARDS. (a) A granting entity may not grant a development subsidy if the cost per employment position is greater than $35,000. (b) The cost per employment position is determined by dividing the total amount or face value of the development subsidy by the number of full-time employment positions to be created by the applicant as described in the application. (c) A granting entity may not grant a subsidy to an applicant unless the applicant pays wages to employees at the project site that are equal to or exceed 85 percent of the average wage rate established under Sections 489.102(a)(14) and (15), as appropriate, except that if the applicant is a small business, the applicant shall pay wages that are equal to or exceed 75 percent of the average wage rate established under those sections. Sec. 489.104. APPROVAL OF APPLICATION; AWARDING OF DEVELOPMENT SUBSIDY. (a) On receipt of a proper application, the granting entity shall review the application for approval. (b) A granting entity may not approve an application unless: (1) the applicant agrees to: (A) meet its job creation, wage, and health care coverage requirements not later than the second anniversary of the date of the subsidy; and (B) maintain those requirements for the term of the subsidy or five years, whichever is later; and (2) the corporate parent of the applicant, if any, agrees to maintain at least 90 percent of its workforce in this state on the date of the subsidy for the later of five years or the term of the subsidy. (c) A granting entity shall send a copy of each approved application to the department not later than the 15th day after the date of approval. The granting entity shall maintain a file of applications for development subsidies that are not approved. Sec. 489.105. ANNUAL PROGRESS REPORT. (a) Not later than February 1 of each year, each granting entity shall file a progress report with the department for each project for which a development subsidy has been granted during the previous fiscal year. (b) The progress report must contain: (1) the application tracking number; (2) the name, business address, and business phone number of the granting entity and of the entity's chief executive officer; (3) the name, business address, and business phone number of the recipient corporation and of the corporation's chief executive officer; (4) a summary of the number of full-time, part-time, and temporary employment positions required, created, and lost during the year, by wage groups as described by Sections 489.102(a)(10) and (11); (5) the type and amount of health care coverage provided to employees at the project site, including any costs of the coverage to be paid by the employees; (6) a comparison of the total number of full-time, part-time, and temporary employees in this state employed by the recipient's corporate parent, if any, on the date of the application and on the date of the report; and (7) a statement as to whether the use of the development subsidy during the fiscal year has reduced the workforce at any other project site or job site of the recipient corporation or its corporate parent, in this state or another state, as a result of automation, merger, acquisition, corporate restructuring, or other business activity. (c) The progress report must include a signed sworn statement of the chief executive officer of the recipient corporation certifying that the report has been reviewed by the officer for factual accuracy. (d) On each progress report following the initial progress report, the granting entity must indicate whether the recipient corporation has met or is still in compliance with its job creation, wage, and health care coverage requirements and whether the corporate parent of the recipient corporation, if any, has met or is still in compliance with its state employment requirement. If either the recipient corporation or its corporate parent are not in compliance with any of the requirements described in this subsection, the recipient corporation or corporate parent shall state the reason for the noncompliance. (e) A granting entity shall file a progress report until the later of: (1) the end of the term of the development subsidy; or (2) the fifth anniversary of the date of the subsidy. Sec. 489.106. RECAPTURE. (a) If a granting entity determines that a corporation has failed to comply with the requirements of Section 489.103 and 489.104, the granting body shall recapture the development subsidy from the recipient corporation as follows: (1) if a recipient corporation fails to create the required number of jobs, pay the required wages, or provide the required health care coverage, the amount to be recaptured shall be computed based on the pro rata amount by which the unfulfilled jobs, wages, or benefits bear to the total amount of the development subsidy; and (2) if a corporate parent fails to maintain 90 percent of its employment in this state, the percentage rate of the amount to be recaptured is equal to the percentage rate by which the employment is less than 90 percent multiplied by two. (b) The granting entity shall provide notice to the recipient corporation of its intent to recapture the development subsidy. The notice must include the grounds for the recapture and the amount to be recaptured. (c) The recipient corporation shall remit to the granting entity the amount recaptured under this section not later than the 60th calendar day after the date on which the recapture notice is received by the corporation. (d) If a recipient corporation defaults on a development subsidy for three consecutive calendar years, the granting entity shall declare the subsidy void and shall notify the department and the recipient corporation of its declaration. The recipient corporation must pay any remaining amount or face value of the development subsidy to the granting entity not later than the 180th calendar day after the date on which the notice of default is received by the corporation. (e) A recipient corporation may appeal a determination or declaration made by a granting entity under this section to the department. Sec. 489.107. UPDATE REPORT ON DEVELOPMENT SUBSIDY. (a) Not later than the 15th day after the second anniversary of the date of the subsidy, the granting entity shall file a report with the department that contains the same information required under Section 489.105 for the two-year period, including whether the recipient corporation has achieved its job creation, wage, and health care coverage requirements and whether the corporate parent, if any, has maintained its state employment requirement. (b) The update report must include a signed sworn statement of the chief executive officer of the recipient corporation certifying that the report has been reviewed by the officer for factual accuracy. Sec. 489.108. PUBLISHING OF REPORTS. For each of the reports required under this subchapter, the department shall annually consolidate all of the information contained in the reports and make the consolidated information available in both written and electronic form, including making the information available in a printable format on the department's Internet website.
[Sections 489.109-489.200 reserved for expansion]
SUBCHAPTER C. ECONOMIC DEVELOPMENT BUDGETS AND REPORTS
Sec. 489.201. CONSOLIDATED ECONOMIC DEVELOPMENT BUDGET. (a) In this section, "company" means a corporation, partnership, limited partnership, registered limited liability partnership, trust, association, joint stock company, joint venture, limited liability company, or other form of business organization. The term does not include a sole proprietorship or individual. (b) Not later than the 90th day after the end of the state's fiscal year, the comptroller shall submit an annual consolidated economic development budget to the legislature. The report must include: (1) for each state agency or local governmental entity that developed or engaged in an economic development activity or project: (A) legislative appropriations for each economic development activity or project, if any; (B) the amount of bond proceeds, taxes, or other revenue received or collected in connection with or to support each economic development activity or project, if applicable; and (C) the amount spent on each economic development activity or project; (2) the amount of revenue foregone by this state or a local governmental entity, to the extent it is possible to assess, because of exemptions, discounts, exclusions, credits, special valuations, or abatements provided by this state or a local governmental entity to a company in relation to: (A) the state sales, excise, and use tax under Chapter 151, Tax Code; (B) the franchise tax under Chapter 171, Tax Code; (C) property taxes, including school district property taxes, property taxes imposed for special district purposes, and property taxes imposed on inventory; (D) utility taxes; and (E) gross receipts taxes; and (3) the name of each company that claimed any exemption, discount, exclusion, credit, special valuation, or abatement described by Subdivision (2) in an amount equal to or greater than $5,000, including the dollar amount received by that company. (c) The report may not include an itemization for any exemption, discount, exclusion, credit, special valuation, or abatement described by Subsection (b)(2) in an amount that is less than $5,000. The comptroller shall report the total dollar amount for those exemptions, discounts, exclusions, credits, special valuations, or abatements and the total number of companies receiving them. (d) Each state agency and local governmental entity shall cooperate with the comptroller to the extent necessary and allowed by law to enable the comptroller to prepare the report required by this section. Sec. 489.202. CONSOLIDATED REPORT OF PROPERTY TAX ABATEMENTS AND REDUCTIONS. (a) Not later than the 90th day after the end of the entity's fiscal year, each property-taxing entity shall submit, on a form prescribed by the comptroller, an annual report to the comptroller regarding any real property in the entity's jurisdiction that has received an exemption from taxation under a property tax abatement agreement or a reduction from taxation for economic development purposes during the entity's fiscal year. (b) The report must include: (1) the name of the property owner; (2) the location of the property, including the street address of the property; (3) the term of any tax abatement agreement, including the beginning and ending dates of the property tax exemption; (4) the schedule of any tax reduction for the property; (5) the portion of the value of the property that is exempt from taxation in each year covered by a tax abatement agreement; (6) the appraised value of the property before any tax abatement agreement or reduction takes effect; (7) an estimate of any loss in ad valorem tax revenue from the property during the term of any tax abatement agreement or as a result of any tax reduction; and (8) any other tax abatement, reduction, or exemption provided by the entity for the property. (c) At the end of the entity's fiscal year, each property-taxing entity shall also submit a report to the comptroller containing the total property tax revenue foregone by the entity during the fiscal year as a result of property tax abatements, reductions, or exemptions provided in the entity's jurisdiction. (d) If a property-taxing entity fails to submit a required report within the prescribed time, the comptroller shall withhold further payments of any development subsidy to the delinquent entity until the entity files the required report. Sec. 489.203. PUBLISHING OF REPORTS. For each of the reports required under this subchapter, the comptroller shall annually consolidate all of the information contained in the reports and make the consolidated information available in both written and electronic form, including making the information available in a printable format on the comptroller's Internet website.
[Sections 489.204-489.300 reserved for expansion]
SUBCHAPTER D. MONITORING AND ENFORCEMENT
Sec. 489.301. ACCESS TO PROJECT SITE AND CERTAIN RECORDS. (a) The granting entity and the department have the authority to access the project site and the relevant records of the recipient corporation at any reasonable time for purposes of monitoring the project and preparing a progress or other report required under this chapter. (b) A recipient corporation that fails to provide the granting entity with the information or access required under this section is liable to the state for a civil penalty in an amount not to exceed: (1) $1,000 for each day of violation occurring after the 10th day after the date on which the report is due but before the 21st day after the due date of the report; or (2) $5,000 for each day of violation occurring after the 20th day after the report's due date. (c) The attorney general may bring suit to recover the civil penalty imposed by this section. Sec. 489.302. PRIVATE ENFORCEMENT ACTION. (a) If a granting entity fails to enforce this chapter, any interested person may bring an action to compel enforcement of this chapter. (b) The court shall award reasonable attorney's fees and court costs to a prevailing plaintiff under this section. SECTION 2. This Act takes effect July 1, 2004.