43 TAC §27.40, §27.44
The Texas Department of Transportation adopts the amendment
to §27.40, and new §27.44, concerning purpose and improvement of
the state highway system by regional tollway authorities. The amendment and
new section are adopted without changes to the text as proposed by publication
in the February 11, 2000, issue of the
Texas Register
(25 TexReg 1083), and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS AND NEW SECTION
Senate Bill 537, 76th Legislature, 1999, added Transportation Code, §201.113
to authorize the Texas Transportation Commission and a regional tollway authority
to enter into an agreement for the improvement by the regional tollway authority
of portions of the state highway system. In that section, improvement means
construction, reconstruction, and maintenance, and the making of a necessary
plan or survey before beginning construction, reconstruction, or maintenance,
and includes a project or activity appurtenant to a state highway, including
drainage facilities, surveying, traffic counts, driveways, landscaping, lights,
or guardrails.
Section 27.40 is amended to describe the authority granted by §201.113,
and to specify that Subchapter D of Chapter 27 also prescribes policies and
procedures governing commission approval of an improvement to the state highway
system by a regional tollway authority.
New §27.44 is adopted to implement the requirements of §201.113,
to prescribe requirements and criteria for commission and department approval
of an improvement to the state highway system by a regional tollway authority,
and to prescribe required provisions in an agreement between the department
and a regional tollway authority concerning the regional tollway authority's
improvement of the state highway system.
Section 27.44(a) provides that, if requested by a regional tollway authority
and approved as required by that section, a regional tollway authority may
improve a segment of the state highway system.
Section 27.44(b) specifies the criteria that will be considered by the
commission when deciding whether to approve a request from a regional tollway
authority to perform work on the state highway system, when the improvement
is one other than those improvements that are necessary to determine whether
it is feasible to develop a segment of the designated state highway system
as a turnpike project. The commission and the department are responsible for
the construction, maintenance, and operation of the state highway system and
the safety of the traveling public on the state highway system, including
ensuring that any state highway improvement project is developed in accordance
with all applicable federal and state laws and regulations.
All such state highway improvement projects will require the review and
approval of the department, and the expenditure of public funds. The commission
and the department are also responsible for acting as proper stewards of public
funds. Accordingly, any decision to allow another entity to perform work on
the state highway system must be carefully considered. Criteria specified
in the amendments will ensure that all applicable federal and state laws and
regulations are complied with by the regional tollway authority, and that
a state highway improvement project is developed in a timely and cost effective
manner.
Section 27.44(c) specifies that upon commission approval of the regional
tollway authority's proposal under §27.44(b), an agreement must be executed
outlining the responsibilities of each party, and containing provisions prescribed
in that subsection. The agreement provisions are necessary to ensure that
the regional tollway authority complies with all applicable federal and state
laws, regulations, and guidelines.
To ensure that a project is not constructed by a regional tollway authority
utilizing insufficient design criteria or inadequate traffic control provisions,
the amendments require the plans, specifications and estimates to be approved
by the department prior to advertising the project for bids. The amendments
also require department approval of documents such as bidding procedures and
contract documents when federal and state funding is utilized.
Section 27.44(d) provides an alternative means of approval when the improvement
involved is one necessary to determine whether it is feasible to develop a
segment of the designated state highway system as a turnpike project. Section
27.44(d) specifies that the executive director or designee may approve without
commission action the improvements described in that subsection. A regional
tollway authority may provide those improvements under an agreement with the
department that outlines the responsibilities of each party and includes the
provisions prescribed in that subsection.
The improvements generally will be for the benefit of the regional tollway
authority, as the improvements will include work such as preliminary plans
and surveys that are used in studies performed by or for a regional tollway
authority to determine whether a proposed turnpike project is feasible for
development. If feasibility is not achieved, the improvements typically need
to be performed again for use in a state highway improvement project, although
the work product of the regional tollway authority may be used as the basis
for any new performance.
Accordingly, the improvements may be approved if provided at the regional
tollway authority's expense and, if feasibility is not achieved, the work
product is provided to the department. As the improvements are generally for
the benefit of the regional tollway authority, they may be performed using
those standards and requirements applicable to turnpike projects of a regional
tollway authority. However, if federal financial assistance is requested for
the turnpike project, all requirements applicable to federally financed projects
must be complied with. To ensure that the department acts as a proper steward
of state property and adequately protects the safety of the traveling public,
any work performed on state highway right of way must be approved in advance
by the appropriate department district, including approval of traffic control
plans.
To ensure that a regional tollway authority remains responsible for any
damages or other liability resulting from an improvement provided by the regional
tollway authority, §27.44(e) specifies that the regional tollway authority
must acknowledge in an agreement with the department that it is responsible
for its own acts and deeds and those of its agents or employees during the
performance of the work authorized in the agreement.
COMMENTS
No comments were received on the proposed amendments.
STATUTORY AUTHORITY
The amendment and new section are adopted under Transportation Code, §201.101,
which provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 30, 2000.
TRD-200002292
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: April 19, 2000
Proposal publication date: February 11, 2000
For further information, please call: (512) 463-8630