TxDOT Sunset Bill giving birth to oversized clutch of toll roads across the state

Photo illustration by Chuck Kerr

Just when you thought the state’s controversial practice of using public-private partnerships to build new toll roads was dead, it isn’t. Like a zombie in Night of the Living Dead, they are back and stronger than ever. On the last Friday in April, with little attention from the media, the Texas House of Representatives took a giant leap forward in expanding these public-private partnerships to build toll roads — a tactic anti-toll-road advocates say is tantamount to selling off Texas’ transportation infrastructure to private corporations.

That notable Friday, the Texas House took up Senate Bill 1420 — more commonly known as the TxDOT Sunset Bill — the legislation that will reauthorize the Texas Department of Transportation and guide its operations for the next several years. During the course of the debate on the bill, legislator after legislator stepped up to the microphone and added public-private toll road projects to the bill.

Terri Hall of San Antonio, co-founder of TURF, a pro-property rights, anti-toll group based in San Antonio, characterized the action as a “feeding frenzy” on the group’s website. When the bill hit the floor, there were 10 such projects already embedded within it; by the time the gavel slammed on the final vote, that number had doubled.

Feeding frenzy: complete.

“I understand everybody has to go home and they need to say they brought bacon back to the home front. I would tell you, the bacon ought not to be to the extent that it harms what we need to do in terms of the whole pig. And, right now, it just looks pretty shabby, as I see it,” Representative Yvonne Davis, D-Dallas, told her colleagues in a speech on the House floor just before the collection of toll road amendments passed, 109-27.

State Representative Larry Phillips, a Sherman Republican who chairs the House Transportation Committee and shepherded the bill through the House, disagrees with Hall’s “feeding frenzy” assessment and nearly everything else the anti-tolling advocates have to say about the new toll road projects headed to places from Bowie County on the Arkansas border to the Rio Grande Valley.

“What you have is local communities asking for the opportunity to move these projects forward instead of having to wait for years. Local elected leaders and local chambers of commerce are coming down and saying that they’ve worked on these projects and they want them,” Phillips said.

Phillips also said that the idea that the state is “selling off” infrastructure to the highest bidder is wrong. “You’re not selling these off. Nobody owns these, but they (private companies) are responsible for building these and maintaining them, and delivering them back to the entity in good shape,” Phillips said.

That, Phillips said, combined with provisions that will completely sunset the projects if they aren’t built by 2015, and requirements that environmental clearance must be gained for each project by a date certain, create protections that won’t allow the projects to simply be pending in perpetuity.

Hank Gilbert, a Whitehouse businessman who co-founded TURF with Hall, said this is merely “window dressing.” “They can go through the environmental impact study fairly quickly, because, on a large majority of these projects, the EIS is already under way,” he said.

Further inflaming anti-toll road advocates is the fact that some of the projects added — like the Bowie County project — were along the dreaded TTC-69 Corridor, part of the highly controversial Trans-Texas Corridor.

A more significant issue, however, is exactly how all of this will happen — how these 20 new toll roads will be built, and how they will be paid for. The mechanism for constructing these roads is a public-private partnership — known in Texas as a “Comprehensive Development Agreement,” or CDA. Who gets to decide the terms of these CDAs? Davis told her colleagues one of her issues with the amendments was that TxDOT “has exclusive judgment to determine the terms of CDAs.” This, of course, means exactly what it says: Within the confines of existing state law, TxDOT and regional mobility authorities letting these contracts can do pretty much whatever they want.

According to Gilbert and TURF, this means one thing: taxpayers are on the hook — big time. “Taxpayer money is essentially being loaned to these companies, in the form of hefty upfront concessions and the tolls themselves, to subsidize the toll roads and taxpayers will be paid back with their own money collected through the toll roads,” Gilbert said. “They’ve created a bunch of bastard calves feeding off the same heifer.”

With TxDOT and regional mobility authorities having carte blanche to write the CDAs as they see fit, a real danger exists that Texas taxpayers could be stuck with serious bills, according to Gilbert.

“The private companies will have an out clause. If the toll roads aren’t making money, and with gas nearing four dollars a gallon that is unlikely, the companies can get out and leave taxpayers on the hook for all the debt,” he said.

As for TxDOT’s part, agency spokeswoman Kelli Petras told the Current that TxDOT and its leadership played no part in adding the projects to the Sunset Bill. However, the agency said all the projects have been on TxDOT’s radar for a while.

“All these projects have been identified and discussed for some time over the years. They have not progressed beyond their current status due in large part to limited available funds. Each is an important project in their respective regions, certainly I-69 is also an unfunded national priority,” Petras wrote in response to written questions submitted by the Current.

TxDOT also confirmed some of TURF’s suspicions about the projects already being underway, at least to some degree. According to Petras, environmental impact studies are underway or complete on several of the projects, with one having been completed more than three years ago. The State Highway 550 project from US Highways 77 and 83 to State Highway 48 received a green light for its Environmental Impact Study back in 2008, and, TxDOT notes, “the local Regional Mobility Authority recently issued an RFP to develop [the] project.”

As for San Antonio and Bexar County, one may wonder why they were left out of the feeding frenzy for new toll roads. The Current asked nearly every member of the Bexar County delegation to the Texas House for a comment on this. While most Reps were too tangled in the hectic nature of the session’s last days, others simply declined to comment. TURF’s Gilbert has a theory, though. “It seems to us that the RMA down there has everything it wants on its plate right now. And, I’m sure they know as long as this same bunch stays in power in the House, they can get whatever they may decide they want next time.”

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