TRANSPORTATION CODE
TITLE 5. RAILROADS
SUBTITLE A. TEXAS DEPARTMENT OF TRANSPORTATION
CHAPTER 91. RAIL FACILITIES
SUBCHAPTER A. GENERAL PROVISIONS
§ 91.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Transportation
Commission.
(2) "Construction" includes design, planning, and
preliminary studies.
(3) "Department" means the Texas Department of
Transportation.
(4) "Maintenance facility" includes:
(A) a workshop;
(B) a service, storage, security, or personnel
facility; and
(C) equipment for a facility described by
Paragraph (A) or (B).
(5) "Operation" includes policing.
(6) "Rail facility" means real or personal property,
or any interest in that property, that is determined to be necessary
or convenient for the provision of a freight or passenger rail
facility or system, including commuter rail, intercity rail, and
high-speed rail. The term includes all property or interests
necessary or convenient for the acquiring, providing, using, or
equipping of a rail facility or system, including rights-of-way,
trackwork, train controls, stations, and maintenance facilities.
(7) "Revenue" includes a charge, toll, rent, payment,
user fee, franchise fee, license fee, fare, tariff, and other
consideration:
(A) received in return for the use of:
(i) a rail facility; or
(ii) a service offered in connection with
the operation of a rail facility; or
(B) resulting from a sale or conveyance of a rail
facility.
(8) "Right-of-way" means a strip of land of a length
and width determined by the commission to be required, necessary,
or convenient for the provision of a rail facility or system and the
space over, under, or on the land where trackwork is to be located.
(9) "Station" means a passenger or freight service
building, terminal, station, ticketing facility, waiting area,
platform, concession, elevator, escalator, facility for
handicapped access, access road, parking facility for passengers,
baggage handling facility, or local maintenance facility, together
with any interest in real property necessary or convenient for
those items.
(10) "Surplus revenue" means:
(A) revenue that exceeds the department's debt
service requirements, coverage requirements of any bond indenture,
costs of operation and maintenance, and cost of expansion or
improvement of a rail facility or system; and
(B) reserves and reserve funds maintained by the
department under this chapter.
(11) "Trackwork" means track, track beds, track bed
preparation, ties, rail fasteners, slabs, rails, emergency
crossovers, setout tracks, storage tracks, drains, fences,
ballast, switches, bridges, and structures.
(12) "Train controls" includes:
(A) signals, lights, and other signaling;
(B) interlocking equipment;
(C) speed monitoring equipment;
(D) braking systems;
(E) central traffic control facilities; and
(F) communication systems.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.002. PUBLIC PURPOSE. The following functions are
public and governmental functions, exercised for a public purpose,
and matters of public necessity:
(1) the acquisition, financing, construction,
operation, and maintenance of a rail facility under this chapter;
(2) the sale, lease, or license of a rail facility to a
rail operator and other public or private persons under this
chapter; and
(3) the exercise of any other power granted under this
chapter to the commission and the department.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.003. RULES. The commission may adopt rules and the
department may adopt procedures and prescribe forms necessary to
implement this chapter.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.004. GENERAL POWERS. The department may:
(1) plan and make policies for the location,
construction, maintenance, and operation of a rail facility or
system in this state;
(2) acquire, finance, construct, maintain, and
subject to Section 91.005, operate a passenger or freight rail
facility, individually or as one or more systems;
(3) for the purpose of acquiring or financing a rail
facility or system, accept a grant or loan from a:
(A) department or agency of the United States;
(B) department, agency, or political subdivision
of this state; or
(C) public or private person;
(4) contract with a public or private person to
finance, construct, maintain, or operate a rail facility under this
chapter; or
(5) perform any act necessary to the full exercise of
the department's powers under this chapter.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.005. RELIANCE ON PRIVATE ENTITIES. The department
shall contract with a private entity to operate a railroad using
facilities owned by the department and may not use department
employees to operate a railroad. The department may maintain a
railroad facility directly or through a private entity. The
department may not own rolling stock.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.006. COOPERATION OF STATE AGENCIES AND POLITICAL
SUBDIVISIONS. Within available resources, an agency or political
subdivision of this state shall cooperate with and assist the
department in exercising its powers and duties under this chapter.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.007. NOTIFICATION OF INTENT TO ABANDON OR
DISCONTINUE SERVICE. On receipt of notice of intent to abandon or
discontinue rail service served under 49 C.F.R. Section 1152.20, as
amended, the department shall coordinate with the governing body of
a municipality, county, or rural rail transportation district in
which all or a segment of the line is located to determine whether:
(1) the department should acquire the rail facility to
which the notice relates; or
(2) any other actions should be taken to provide for
continued rail transportation service.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
SUBCHAPTER B. ACQUISITION AND DEVELOPMENT OF RAIL FACILITIES
§ 91.031. ESTABLISHMENT OF RAIL SYSTEMS. (a) If the
commission determines that the provision of rail transportation
services would be most efficiently and economically met by jointly
operating two or more rail facilities as one operational and
financial enterprise, it may create a system composed of those
facilities.
(b) The commission may create more than one system and may
combine two or more systems into one system.
(c) The department may finance, acquire, construct, and
operate additional rail facilities as additions to and expansions
of the system if the commission determines that the facility would
most efficiently and economically be acquired and constructed if it
were a part of the system and that the addition will benefit the
system.
(d) The revenue of a system shall be accounted for
separately and may not be commingled with the revenue of a rail
facility that is not part of the system.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.032. ACQUISITION OF RAIL FACILITIES. (a) The
commission may authorize the department to acquire an existing rail
facility at a location and on a route the commission determines to
be feasible and viable for rail transportation service.
(b) The department may enter into an agreement with the
owner of an operating railroad for the acquisition or use of a rail
facility on terms the department considers to be in the best
interest of the state.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.033. ENVIRONMENTAL REVIEW. (a) The department
shall conduct or approve all environmental evaluations or studies
required for the construction, maintenance, or operation of a rail
facility.
(b) The commission may adopt rules to allocate
responsibility for conducting an environmental evaluation or study
or preparing environmental documentation among entities involved
in the construction, maintenance, or operation of a rail facility
under this chapter.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.034. ENVIRONMENTAL MITIGATION. (a) The
department may acquire, maintain, hold, restore, enhance, develop,
or redevelop property for the purpose of mitigating a past,
present, or future adverse environmental effect arising from the
construction, maintenance, or operation of a rail facility without
regard to whether the need for mitigation has already been
established for a particular project.
(b) The department may contract with a governmental or
private entity to maintain, control, hold, restore, enhance,
develop, or redevelop property for the mitigation of a past,
present, or future adverse environmental effect arising from the
construction, maintenance, or operation of a rail facility without
regard to whether the need for mitigation has already been
established for a particular project.
(c) If authorized by the applicable regulatory authority,
the department may pay an amount of money to an appropriate
governmental or private entity instead of acquiring or managing
property for the mitigation of a past, present, or future adverse
environmental effect arising from construction, maintenance, or
operation of a rail facility without regard to whether the need for
mitigation has already been established for a particular project.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.035. USE OF FACILITIES BELONGING TO PUBLIC OR
PRIVATE ENTITY. (a) The department, for the purpose of
acquiring, constructing, maintaining, and operating freight or
passenger rail facilities and systems in this state, may:
(1) use a street, alley, road, highway, or other
public way of a municipality, county, or other political
subdivision with the consent of that political subdivision; and
(2) at the expense of the department, relocate, raise,
reroute, or change the grade of the construction of a street, alley,
highway, road, railroad, electric line and facility, telegraph and
telephone property and facility, pipeline and facility, conduit and
facility, and other properties, whether publicly or privately
owned, as necessary or useful in the construction, maintenance, and
operation of a rail facility or system.
(b) The department shall provide reasonable notice to the
owner of the applicable facility of the need for the alteration
under Subsection (a)(2) and allow that owner the opportunity to
complete the alteration.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.036. EXPENDITURE OF FUNDS. Subject to Section
91.071(b), the department may receive, accept, and expend funds
from this state, a federal agency, or other public or private source
for:
(1) rail planning;
(2) studies to determine the viability of a rail
facility for rail transportation service;
(3) studies to determine the necessity for the
department's acquisition or construction of a rail facility; and
(4) the acquisition, construction, maintenance, or
operation of a rail facility under this chapter, including the
assessment and remediation of environmental contamination existing
in or on a rail facility.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.0361. CERTAIN FREIGHT RAILROAD PROJECTS. (a) If
sufficient funds from bonds sold to construct the Central Texas
turnpike project or from the Texas mobility fund are available, the
department may, and is strongly encouraged to, use the funds for
engineering, design, grading, and construction necessary to create
a grade-separated freight rail line capable of being safely
traveled by trains operating at not less than 80 miles per hour in
or adjacent to the State Highway 130 corridor.
(b) The department may, and is strongly encouraged to, enter
into negotiations with any Class I railroad concerning building and
operating a freight railroad in or adjacent to the State Highway 130
corridor. The department may explore with any Class I railroad the
possibility of operating the freight railroad line in or adjacent
to the State Highway 130 corridor as a revenue-producing
partnership that could benefit this state and the current holders
of bonds used in the financing of State Highway 130.
(c) This section may not be construed to allow any delay in
the current published schedule for the construction and completion
of State Highway 130.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.037. CONTRACTS WITH GOVERNMENTAL ENTITIES. This
chapter does not apply to real or personal property, facilities,
funding, projects, operations, construction, or a project plan of a
transportation authority created under Chapter 451, 452, or 460
unless the commission or its designee has signed a written
agreement with the transportation authority specifying the terms
and conditions under which the transportation authority may
participate.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
SUBCHAPTER C. CONTRACTS
§ 91.051. AWARDING OF CONTRACTS. Unless otherwise
provided by this subchapter, a contract made by the department for
the construction, maintenance, or operation of a rail facility must
be let by a competitive bidding procedure in which the contract is
awarded to the lowest responsible bidder that complies with the
department's criteria.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.052. AGREEMENTS TO CONSTRUCT, MAINTAIN, AND OPERATE
RAIL FACILITIES. The department may enter into an agreement with a
public entity, including a political subdivision of this state, to
permit the entity, independently or jointly with the department, to
acquire, construct, maintain, or operate a rail facility or system.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.053. SMALL AND DISADVANTAGED BUSINESSES. (a) The
department shall:
(1) set goals for the award of contracts to small and
disadvantaged businesses and attempt to meet the goals;
(2) attempt to identify small and disadvantaged
businesses that provide or have the potential to provide supplies,
materials, equipment, or services to the department; and
(3) give small and disadvantaged businesses full
access to the department's contract bidding process and other
contracting processes, inform the businesses about those
processes, offer the businesses assistance concerning those
processes, and identify barriers to the businesses' participation
in those processes.
(b) This section does not exempt the department from
competitive bidding requirements imposed by other law.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
SUBCHAPTER D. FINANCING OF RAIL FACILITIES
§ 91.071. FUNDING. (a) Except as provided in
Subsection (b), the department may use any available funds to
implement this chapter, including funds from the state
infrastructure bank.
(b) Each fiscal year, the total amount disbursed by the
department from the state highway fund to implement this chapter
may not exceed $12.5 million. This subsection does not apply to:
(1) the acquisition of abandoned rail facilities
described in Section 91.007;
(2) funding derived from the issuance of bonds,
private investment, and donations;
(3) federal funds from the Federal Railroad
Administration, from the Federal Transit Administration, or
authorized and appropriated by the United States Congress for a
specific project;
(4) grants awarded by the governor from the Texas
Enterprise Fund; and
(5) grading and bed preparation.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003. Amended by Acts 2003, 78th Leg., 3rd C.S., ch. 8, §
5.01(a), eff. Jan. 11, 2004.
§ 91.072. FINANCING OF RAIL FACILITIES AND
SYSTEMS. (a) The commission and the department have the same
powers and duties relating to the financing of a rail facility or a
system established under Section 91.031 as the commission and the
department have under Subchapter E, Chapter 361, relating to the
financing of a turnpike project, including the ability to deposit
the proceeds of bonds or other obligations and to pledge, encumber,
and expend such proceeds and revenues as provided in Chapter 361.
(b) The powers held by the commission and the department
include the power to:
(1) authorize the issuance of bonds to pay all or part
of the cost of acquiring, constructing, maintaining, or operating a
rail facility or system;
(2) maintain separate accounts for bond proceeds and
the revenues of a rail facility or system, and pledge those revenues
and proceeds to the payment of bonds or other obligations issued or
entered into with respect to the facility or system;
(3) impose fees, rents, and other charges for the use
of a rail facility or system; and
(4) obtain from another source the fees and other
revenue necessary to pay all or part of the principal and interest
on bonds issued under this chapter.
(c) For purposes of this section, a reference in Subchapter
E, Chapter 361 to:
(1) a turnpike project means a rail facility or
system; and
(2) revenue includes a fee, rent, or other usage
charge established under this chapter or other money received under
Sections 91.073 and 91.074.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.073. GRANTS AND LOANS. The department may apply
for, accept, and expend money from grants, loans, or reimbursements
for any purpose of this chapter, including paying for the cost of
the acquisition, construction, maintenance, and operation of a rail
facility or system.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.074. REVENUE. (a) The department may require a
person, including any public or private entity, to pay a fee as a
condition of using any part of a rail facility or system. The
department may not require a person to pay a fee in connection with
the placement, maintenance, or other use of a public utility
facility.
(b) The department shall establish and maintain rents or
other compensation for the use of rail facilities or systems in an
amount that is, together with other revenue of the department
received under this chapter, sufficient to enable the department to
comply with the requirements of Section 91.072.
(c) The department may contract with a person for the use of
all or part of a rail facility or system or may lease or sell all or
part of a rail facility or system, including all or any part of the
right-of-way adjoining trackwork, for any purpose, including
placing on the adjoining right-of-way a storage or transfer
facility, warehouse, garage, parking facility, telecommunication
line or facility, restaurant, or gas station.
(d) The department shall not unreasonably discriminate in
deciding who may use any part of a rail facility or system.
(e) All revenue received by the department under this
chapter:
(1) shall be deposited to the credit of the state
highway fund and may be used for any purpose authorized by this
chapter; and
(2) is exempt from the application of Section 403.095,
Government Code.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
SUBCHAPTER E. ACQUISITION AND DISPOSAL OF PROPERTY
§ 91.091. ACQUISITION OF REAL PROPERTY. (a) The
commission may authorize the department to acquire in the name of
the state a right-of-way, a property right, or other interest in
real property determined to be necessary or convenient for the
department's acquisition, construction, maintenance, or operation
of rail facilities.
(b) The commission may authorize the department to acquire
property by any method, including purchase and condemnation.
Property may be purchased under any terms determined by the
department to be in the best interest of the state.
(c) Property may be purchased along alternative potential
routes for a rail facility even if only one of those potential
routes will ultimately be chosen as the final route.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.092. PROPERTY NECESSARY OR CONVENIENT FOR RAIL
FACILITIES. Property necessary or convenient for the department's
acquisition, construction, maintenance, or operation of rail
facilities includes an interest in real property or a property
right the commission determines is necessary or convenient to
provide:
(1) right-of-way for a location for:
(A) a rail facility; or
(B) the future expansion of a rail facility;
(2) land for mitigation of adverse environmental
effects;
(3) buffer zones for scenic or safety purposes; and
(4) revenue for use in acquiring, constructing,
maintaining, or operating a rail facility or system, including
revenue received under a contract described by Section 91.074(c).
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.093. RIGHT OF ENTRY. (a) To acquire property
necessary or convenient for a rail facility, the department may
enter any premises or real property, including a body of water, to
make a survey, geotechnical evaluation, sounding, or examination.
(b) An entry under Subsection (a) or (d) is not:
(1) a trespass; or
(2) an entry under a pending condemnation procedure.
(c) The department shall make reimbursements for actual
damages that result from an entry under Subsection (a) or (d).
(d) To ensure the safety and convenience of the public, the
department shall, when entering any real property, water, or
premises on which is located a public utility facility:
(1) comply with applicable industry standard safety
codes and practices; and
(2) notwithstanding Subsection (a), give the owner or
operator of the public utility facility not less than 10 days'
notice before entering the real property, water, or premises.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.094. CONVEYANCE OF PROPERTY BELONGING TO POLITICAL
SUBDIVISION OR PUBLIC AGENCY. The governing body of a
municipality, county, political subdivision, or public agency may,
without advertisement, convey the title to or a right in property
determined to be necessary or convenient by the department under
this subchapter.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.095. DISPOSAL OF PROPERTY. The department may
sell, convey, or otherwise dispose of any rights or other interests
in real property acquired under this subchapter that the commission
determines are no longer needed for department purposes.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
SUBCHAPTER F. OPERATION AND USE OF RAIL FACILITIES
§ 91.101. CONTRACTS FOR RAIL TRANSPORTATION
SERVICES. The department may contract with a county or other
political subdivision of the state for the department to provide
rail transportation services on terms agreed to by the parties.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.102. CONTRACTS WITH RAIL OPERATORS. (a) The
department may lease all or part of a rail facility or system to a
rail operator. The department may contract with a rail operator for
the use or operation of all or part of a rail facility or system.
(b) The department shall encourage to the maximum extent
practical the participation of private enterprise in the operation
of rail facilities and systems.
(c) A lease agreement shall provide for the department's
monitoring of a rail operator's service and performance.
(d) The department may enter into an agreement with a rail
operator to sell all or any part of state-owned rail facilities on
terms the department considers to be in the best interest of the
state.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.103. JOINT USE OF RAIL FACILITIES. The department
may:
(1) enter into an agreement with a rail operator,
public utility, private utility, communication system, common
carrier, or transportation system for the common use of its
facilities, installations, or properties; and
(2) establish through routes, joint fares, and,
subject to approval of a tariff-regulating body having
jurisdiction, divisions of tariffs.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.104. ROUTINGS. The department may determine
routings for rail facilities acquired, constructed, or operated by
the department under this chapter.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
§ 91.105. PLACEMENT OF UTILITY FACILITIES, LINES, AND
EQUIPMENT. (a) A utility has the same right to place its
facilities, lines, or equipment in, over, or across right-of-way
that is part of a state-owned rail facility as the utility has with
respect to the right-of-way of a state highway under Chapter 181,
Utilities Code. A utility shall notify the department of the
utility's intention to exercise authority over right-of-way that is
part of state-owned rail facilities.
(b) On receipt of notice under Subsection (a), the
department may designate the location in the right-of-way where the
utility may place its facilities, lines, or equipment.
(c) The department may require a utility to relocate the
utility's facilities, lines, or equipment, at the utility's
expense, to allow for the expansion or relocation of rail
facilities owned by the state. A relocation under this subsection
must be accomplished pursuant to Subsections (e)-(j). The
department shall pay for the cost of the relocation. If a utility
facility is replaced, the cost of replacement is limited to an
amount equal to the cost of replacing the facility with a comparable
facility, less the net salvage value of the replaced facility.
(d) A utility may use and operate a facility required to be
relocated under this section at the new location for the same period
and on the same terms as the utility had the right to do at the
previous location of the facility.
(e) If the department determines that a public utility
facility must be relocated, the utility and the department shall
negotiate in good faith to establish reasonable terms and
conditions concerning the responsibilities of the parties with
regard to sharing of information about the project and the planning
and implementation of any necessary relocation of a public utility
facility.
(f) The department shall use its best efforts to provide an
affected utility with plans and drawings of the project that are
sufficient to enable the utility to develop plans for, and
determine the cost of, the necessary relocation of the public
utility facility. If the department and the affected utility enter
into an agreement after negotiations under Subsection (e), the
terms and conditions of the agreement govern the relocation of
public utility facilities covered by the agreement.
(g) If the department and an affected utility do not enter
into an agreement under Subsection (e), the department shall
provide to the affected utility:
(1) written notice of the department's determination
that the public utility facility must be removed;
(2) a final plan for relocation of the public utility
facility; and
(3) reasonable terms and conditions for an agreement
with the utility for the relocation of the public utility facility.
(h) Not later than the 90th day after the date a utility
receives the notice from the department, including the plan and
agreement terms and conditions under Subsection (g), the utility
shall enter into an agreement with the department that provides for
the relocation.
(i) If the utility fails to enter into an agreement within
the 90-day period under Subsection (h), the department may relocate
the public utility facility at the sole cost and expense of the
utility less any reimbursement of costs that would have been
payable to the utility under applicable law. A relocation by the
department under this subsection shall be conducted in full
compliance with applicable law, using standard equipment and
construction practices compatible with the utility's existing
facilities, and in a manner that minimizes disruption of utility
service.
(j) The 90-day period under Subsection (h) may be extended:
(1) by mutual agreement between the department and the
utility; or
(2) for any period during which the utility is
negotiating in good faith with the department to relocate its
facility.
Added by Acts 2003, 78th Leg., ch. 1325, § 4.01, eff. June 21,
2003.
