Texas 2009 - 81st Regular

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11 S.B. No. 2064
22
33
44 AN ACT
55 relating to the issuance of state and local government securities,
66 including the powers and duties of the Bond Review Board and the
77 issuance of private activity bonds.
88 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
99 SECTION 1. Section 1231.062, Government Code, is amended by
1010 amending Subsection (a) and adding Subsection (d) to read as
1111 follows:
1212 (a) Not later than December [October] 31 of each
1313 even-numbered year, the board shall submit to the legislature a
1414 statistical report relating to:
1515 (1) state securities; and
1616 (2) bonds and other debt obligations issued by local
1717 governments.
1818 (d) The board may enter into a contract for the procurement
1919 of services related to the collection and maintenance of
2020 information on the indebtedness of local governments and state
2121 agencies necessary to prepare the statistical report.
2222 SECTION 2. Subsection (c), Section 1231.063, Government
2323 Code, is amended to read as follows:
2424 (c) Not later than February 15 [December 1] of each year,
2525 the board shall submit the annual study to:
2626 (1) the governor;
2727 (2) the comptroller;
2828 (3) the presiding officer of each house of the
2929 legislature; and
3030 (4) the Senate Committee on Finance and House
3131 Appropriations Committee.
3232 SECTION 3. The heading to Chapter 1372, Government Code, is
3333 amended to read as follows:
3434 CHAPTER 1372. PRIVATE ACTIVITY BONDS AND CERTAIN OTHER BONDS
3535 SECTION 4. Section 1372.001, Government Code, is amended by
3636 amending Subdivisions (1) and (2) and adding Subdivisions (1-a),
3737 (1-b), (4-a), and (8-a) to read as follows:
3838 (1) "Additional state ceiling" means authorization
3939 under federal law for the issuance of bonds that are tax-exempt
4040 private activity bonds subject to the limits imposed by Section
4141 146, Internal Revenue Code (26 U.S.C. Section 146), in an amount in
4242 addition to the state ceiling, including the additional tax-exempt
4343 private activity bonds authorized by Section 3021 of the Housing
4444 and Economic Recovery Act of 2008 (Pub. L. No. 110-289).
4545 (1-a) "Applicable official" means the state official
4646 or state agency designated by federal law to allocate a
4747 miscellaneous bond ceiling or designate bonds entitled to the
4848 federal subsidy limited by a miscellaneous bond ceiling or, in the
4949 absence of designation by federal law, the governor.
5050 (1-b) "Board" means the Bond Review Board.
5151 (2) "Bonds" means all obligations, including bonds,
5252 certificates, or notes, that are:
5353 (A) authorized to be issued by:
5454 (i) the constitution or a statute of this
5555 state; or
5656 (ii) the charter of a home-rule
5757 municipality; and
5858 (B) either:
5959 (i) subject to the limitations of Section
6060 146, Internal Revenue Code (26 U.S.C. Section 146); or
6161 (ii) with respect to Subchapter D,
6262 otherwise entitled to a federal subsidy only if designated for the
6363 exemption, credit, or other subsidy, or allocated a portion of a
6464 limited amount of obligations for which the exemption, credit, or
6565 other subsidy is authorized, by this state or an applicable
6666 official or by an issuer to which this state or the applicable
6767 official has made an allocation, including exemptions, credits, and
6868 other subsidies authorized by:
6969 (a) the Heartland Disaster Tax Relief
7070 Act of 2008 (Pub. L. No. 110-343), regarding Hurricane Ike disaster
7171 area bonds;
7272 (b) the American Recovery and
7373 Reinvestment Act of 2009 (Pub. L. No. 111-5); or
7474 (c) any other federal law authorizing
7575 a federal subsidy.
7676 (4-a) "Federal subsidy" means an exclusion of interest
7777 on a bond from gross income for federal income tax purposes, a
7878 federal income tax credit associated with a bond, a direct federal
7979 subsidy of interest on a bond, or any other federally authorized
8080 financial benefit associated with a bond.
8181 (8-a) "Miscellaneous bond ceiling" means the maximum
8282 amount of bonds of any type that may be issued by issuers in this
8383 state during a calendar year, or cumulatively, that are entitled to
8484 a federal subsidy only if designated for the federal subsidy, or
8585 allocated a portion of a limited amount of bonds other than bonds
8686 subject to the limits imposed by Section 146, Internal Revenue Code
8787 (26 U.S.C. Section 146), for which the federal subsidy is
8888 authorized, by:
8989 (A) this state or the applicable official; or
9090 (B) an issuer to which this state or the
9191 applicable official has made an allocation.
9292 SECTION 5. Section 1372.002, Government Code, is amended by
9393 amending Subsection (a) and adding Subsection (e) to read as
9494 follows:
9595 (a) For purposes of this chapter, a project is:
9696 (1) an eligible facility or facilities that are
9797 proposed to be financed, in whole or in part, by an issue of
9898 qualified residential rental project bonds;
9999 (2) in connection with an issue of qualified mortgage
100100 bonds or qualified student loan bonds, the providing of financial
101101 assistance to qualified mortgagors or students located in all or
102102 any part of the jurisdiction of the issuer; or
103103 (3) an eligible facility or facilities that are [is]
104104 proposed to be financed, in whole or in part, by an issue of bonds
105105 other than bonds described by Subdivision (1) or (2).
106106 (e) For purposes of Subsection (a)(3), and only for
107107 applications for the financing of sewage facilities, solid waste
108108 disposal facilities, and qualified hazardous waste facilities, an
109109 application under this chapter may include multiple facilities in
110110 multiple jurisdictions. In such an application, the number of
111111 facilities may be reduced as needed without affecting their status
112112 as a project for purposes of the application.
113113 SECTION 6. Subsection (a), Section 1372.006, Government
114114 Code, is amended to read as follows:
115115 (a) An application for a reservation under Subchapter B or a
116116 carryforward designation under Subchapter C must be accompanied by
117117 a nonrefundable fee in the amount of $500, except that:
118118 (1) for projects that include multiple facilities
119119 authorized under Section 1372.002(e), the application must be
120120 accompanied by a nonrefundable fee in an amount of $500 for each
121121 facility included in the application for the project; and
122122 (2) for issuers of qualified residential rental
123123 project bonds the application must be accompanied by a
124124 nonrefundable fee of $5,000, of which the board shall retain $1,000
125125 to offset the costs of the private activity bond allocation program
126126 and the administration of that program and of which the board shall
127127 transfer $4,000 through an interagency agreement to the Texas
128128 Department of Housing and Community Affairs for use in the
129129 affordable housing research and information program as provided by
130130 Section 2306.259.
131131 SECTION 7. Section 1372.022, Government Code, is amended to
132132 read as follows:
133133 Sec. 1372.022. AVAILABILITY OF STATE CEILING TO ISSUERS.
134134 (a) If the state ceiling is computed on the basis of $75 per capita
135135 or a greater amount, before August 15 of each year:
136136 (1) 28.0 percent of the state ceiling is available
137137 exclusively for reservations by issuers of qualified mortgage
138138 bonds;
139139 (2) 8 percent of the state ceiling is available
140140 exclusively for reservations by issuers of state-voted issues;
141141 (3) 2.0 percent of the state ceiling is available
142142 exclusively for reservations by issuers of qualified small issue
143143 bonds and enterprise zone facility bonds;
144144 (4) 22.0 percent of the state ceiling is available
145145 exclusively for reservations by issuers of qualified residential
146146 rental project bonds;
147147 (5) 10.5 percent of the state ceiling is available
148148 exclusively for reservations by issuers of qualified student loan
149149 bonds authorized by Section 53B.47 [53.47], Education Code, that
150150 are nonprofit corporations able to issue a qualified scholarship
151151 funding bond as defined by Section 150(d)(2), Internal Revenue Code
152152 (26 U.S.C. Section 150(d)(2)); and
153153 (6) 29.5 percent of the state ceiling is available
154154 exclusively for reservations by any other issuer of bonds that
155155 require an allocation.
156156 (b) On and after August 15 [but before September 1], that
157157 portion of the state ceiling available for reservations becomes
158158 available for all applications for reservations in the order
159159 determined by the board by lot. If all applicants for a reservation
160160 have been offered a portion of the available state ceiling, then the
161161 board shall grant reservations in the order in which the
162162 applications for those reservations are received[, subject to
163163 Section 1372.0321. On and after September 1, that portion of the
164164 state ceiling available for reservations becomes available to any
165165 issuer for any bonds that require an allocation, subject to the
166166 provisions of this subchapter].
167167 SECTION 8. Section 1372.026, Government Code, is amended to
168168 read as follows:
169169 Sec. 1372.026. LIMITATION ON AMOUNT OF STATE CEILING
170170 AVAILABLE TO HOUSING FINANCE CORPORATIONS. (a) The maximum amount
171171 of the state ceiling that may be reserved before August 15 by a
172172 housing finance corporation for the issuance of qualified mortgage
173173 bonds may not exceed the amount computed as follows:
174174 (1) if the local population of the housing finance
175175 corporation is 300,000 or more, $36 [$22.5] million plus the
176176 product of the amount by which the local population exceeds 300,000
177177 multiplied by $40 [$11.25];
178178 (2) if the local population of the housing finance
179179 corporation is 200,000 or more but less than 300,000, $32 [$20]
180180 million plus the product of the amount by which the local population
181181 exceeds 200,000 multiplied by $40 [$22.5];
182182 (3) if the local population of the housing finance
183183 corporation is 100,000 or more but less than 200,000, $24 [$15]
184184 million plus the product of the amount by which the local population
185185 exceeds 100,000 multiplied by $80 [$50]; or
186186 (4) if the local population of the housing finance
187187 corporation is less than 100,000, the product of the local
188188 population multiplied by $240 [$150].
189189 (b) A housing finance corporation may not receive an
190190 allocation for the issuance of qualified mortgage bonds in an
191191 amount that exceeds $40 [$25] million.
192192 (c) For purposes of this section, the local population of a
193193 housing finance corporation is the population of the local
194194 government or local governments on whose behalf a housing finance
195195 corporation is created. If two local governments that have a
196196 population of at least 50,000 [20,000] each and that have
197197 overlapping territory have created housing finance corporations
198198 that have the power to issue bonds to provide financing for home
199199 mortgages, the population of the housing finance corporation
200200 created on behalf of the larger local government is computed by
201201 subtracting from the population of the larger local government the
202202 population of the part of the smaller local government that is
203203 located in the larger local government. The reduction of
204204 population provided by this subsection is not required if the
205205 smaller local government assigns its authority to issue bonds,
206206 based on its population, to the larger local government.
207207 SECTION 9. Section 1372.0261, Government Code, is amended
208208 by amending Subsections (c) and (d) and adding Subsections (e),
209209 (f), and (g) to read as follows:
210210 (c) If a housing finance corporation's utilization
211211 percentage is less than 80 [95] percent but at least 25 percent, the
212212 next time the corporation becomes eligible for a reservation of the
213213 state ceiling, the maximum amount of the state ceiling that may be
214214 reserved for the corporation is equal to the amount for which the
215215 corporation would otherwise be eligible under Section 1372.026
216216 multiplied by the utilization percentage of the corporation's last
217217 bond issue that used an allocation of the state ceiling.
218218 (d) A housing finance corporation may not be penalized under
219219 Subsection (c) if:
220220 (1) the corporation fails to use:
221221 (A) bond proceeds recycled from previous
222222 allocations of the state ceiling; or
223223 (B) taxable bond proceeds; or
224224 (2) as the result of an issuance of bonds, the
225225 corporation's utilization percentage is 80 [95] percent or greater.
226226 (e) If a housing finance corporation's utilization
227227 percentage is less than 25 percent, the next time the corporation
228228 becomes eligible for a reservation of the state ceiling, the
229229 maximum amount of the state ceiling that may be reserved for the
230230 corporation is equal to the amount for which the corporation would
231231 otherwise be eligible under Section 1372.026 multiplied by 25
232232 percent.
233233 (f) A housing finance corporation may not be penalized under
234234 Subsection (c) in a program year if, by December 31 of the preceding
235235 program year, an amount equal to or less than 50 percent of the
236236 aggregate state ceiling available for reservations by issuers of
237237 qualified mortgage bonds under Section 1372.022(a)(1):
238238 (1) has been used in connection with bond issues that
239239 have closed on or before that date; or
240240 (2) has had carryforward elections filed on or before
241241 that date.
242242 (g) An issuer that has carryforward available from the state
243243 ceiling created by the Housing and Economic Recovery Act of 2008
244244 (Pub. L. No. 110-289) is not restricted by project limits for the
245245 state ceiling. An issuer who uses the carryforward to issue
246246 qualified mortgage bonds or mortgage credit certificates is not
247247 subject to the utilization percentage calculation in determining
248248 the amount of the issuer's reservation request.
249249 SECTION 10. Subsection (b), Section 1372.028, Government
250250 Code, is amended to read as follows:
251251 (b) An issuer may apply for a reservation for a program year
252252 not earlier than October 5 of the preceding year. An issuer may not
253253 submit an application for a program year after November 15
254254 [December 1] of that year.
255255 SECTION 11. Subsection (a), Section 1372.035, Government
256256 Code, is amended to read as follows:
257257 (a) The board may not grant a reservation of a portion of the
258258 state ceiling for a program year before January 2 or after November
259259 15 [December 1] of that year.
260260 SECTION 12. Subsection (a), Section 1372.037, Government
261261 Code, is amended to read as follows:
262262 (a) Except as provided by Subsection (b), before August 15
263263 the board may not grant for any single project a reservation for
264264 that year that is greater than:
265265 (1) $40 [$25] million, if the issuer is an issuer of
266266 qualified mortgage bonds, other than the Texas Department of
267267 Housing and Community Affairs or the Texas State Affordable Housing
268268 Corporation;
269269 (2) $50 million, if the issuer is an issuer of a
270270 state-voted issue, other than the Texas Higher Education
271271 Coordinating Board, or $75 million, if the issuer is the Texas
272272 Higher Education Coordinating Board;
273273 (3) the amount to which the Internal Revenue Code
274274 limits issuers of qualified small issue bonds and enterprise zone
275275 facility bonds, if the issuer is an issuer of those bonds;
276276 (4) the lesser of $20 [$15] million or 15 percent of
277277 the amount set aside for reservation by issuers of qualified
278278 residential rental project bonds, if the issuer is an issuer of
279279 those bonds;
280280 (5) the amount as prescribed in Sections 1372.033(d),
281281 (e), and (f), if the issuer is an issuer authorized by Section
282282 53B.47 [53.47], Education Code, to issue qualified student loan
283283 bonds; or
284284 (6) $50 million, if the issuer is any other issuer of
285285 bonds that require an allocation.
286286 SECTION 13. Section 1372.042, Government Code, is amended
287287 by adding Subsection (e) to read as follows:
288288 (e) In addition to any other fees required by this chapter,
289289 an issuer shall submit to the board a nonrefundable fee in the
290290 amount of $500 before receiving a carryforward designation under
291291 Subsection (c).
292292 SECTION 14. Subchapter B, Chapter 1372, Government Code, is
293293 amended by adding Section 1372.045 to read as follows:
294294 Sec. 1372.045. RESERVATION, ALLOCATION, AND CARRYFORWARD
295295 DESIGNATION BY BOARD OF ADDITIONAL STATE CEILING. (a) The board
296296 is authorized to establish and administer programs for the
297297 reservation, allocation, and carryforward designation of
298298 additional state ceiling in accordance with the federal law that
299299 establishes the additional state ceiling and, to the extent
300300 consistent with the federal law, as the board determines will
301301 achieve the purposes for which the additional state ceiling is
302302 authorized by federal law.
303303 (b) The board may adopt rules and procedures the board
304304 considers necessary to effectively administer programs authorized
305305 under this section.
306306 (c) The board may prescribe forms and applications as needed
307307 to effectively implement and administer programs authorized under
308308 this section.
309309 (d) The board may adopt emergency rules in connection with
310310 the programs authorized under this section when the board
311311 determines that the emergency rules are necessary for the state to
312312 obtain the full benefits of the additional state ceiling.
313313 SECTION 15. Subchapter C, Chapter 1372, Government Code, is
314314 amended by adding Section 1372.073 to read as follows:
315315 Sec. 1372.073. DESIGNATION BY BOARD OF UNENCUMBERED STATE
316316 CEILING. Notwithstanding any other provision of this chapter, the
317317 board on the last business day of the year may assign as
318318 carryforward to state agencies at their request and in the order
319319 received any state ceiling that is not reserved or designated as
320320 carryforward and for which no application for carryforward is
321321 pending.
322322 SECTION 16. Chapter 1372, Government Code, is amended by
323323 adding Subchapter D to read as follows:
324324 SUBCHAPTER D. ALLOCATION OF MISCELLANEOUS BOND CEILING
325325 Sec. 1372.101. PROGRAM ADMINISTRATION. (a) The
326326 applicable official may designate bonds as entitled to a portion of
327327 a miscellaneous bond ceiling or allocate a portion of a
328328 miscellaneous bond ceiling to an issuer of bonds:
329329 (1) in accordance with the federal law that
330330 establishes the federal subsidy for which the miscellaneous bond
331331 ceiling is established; and
332332 (2) to the extent consistent with the federal law, as
333333 the applicable official determines will achieve the purposes for
334334 which the federal subsidy is authorized by federal law.
335335 (b) The board is authorized to administer programs
336336 established by the applicable official for the allocation of a
337337 miscellaneous bond ceiling or the designation of bonds entitled to
338338 the federal subsidy limited by a miscellaneous bond ceiling.
339339 Sec. 1372.102. RULES AND PROCEDURES. (a) Unless otherwise
340340 provided by law, the board may adopt rules and procedures the board
341341 considers necessary to effectively administer programs established
342342 by the applicable official for allocation of a miscellaneous bond
343343 ceiling or for designating bonds as entitled to the federal subsidy
344344 limited by the miscellaneous bond ceiling.
345345 (b) The board may adopt emergency rules in connection with
346346 the programs described in Subsection (a) when the board determines
347347 that the emergency rules are necessary for the state to obtain the
348348 full benefits of the federal subsidy that is limited by the
349349 miscellaneous bond ceiling.
350350 (c) The board may prescribe forms and applications as needed
351351 to effectively implement and administer programs described in
352352 Subsection (a).
353353 (d) This section does not prevent an applicable official
354354 from adopting rules and procedures in connection with the
355355 allocations and designations when required by federal or state law
356356 or from administering a program independently of the board.
357357 Sec. 1372.103. APPLICATION FEES. In connection with
358358 programs established by the applicable official for the allocation
359359 of a miscellaneous bond ceiling or the designation of bonds
360360 entitled to the federal subsidy limited by a miscellaneous bond
361361 ceiling, the board may charge an application fee for each
362362 application it receives under this subchapter.
363363 SECTION 17. Section 1372.0235, Government Code, is
364364 repealed.
365365 SECTION 18. Subsection (a), Section 2306.6703, Government
366366 Code, is amended to read as follows:
367367 (a) An application is ineligible for consideration under
368368 the low income housing tax credit program if:
369369 (1) at the time of application or at any time during
370370 the two-year period preceding the date the application round
371371 begins, the applicant or a related party is or has been:
372372 (A) a member of the board; or
373373 (B) the director, a deputy director, the director
374374 of housing programs, the director of compliance, the director of
375375 underwriting, or the low income housing tax credit program manager
376376 employed by the department;
377377 (2) the applicant proposes to replace in less than 15
378378 years any private activity bond financing of the development
379379 described by the application, unless:
380380 (A) at least one-third of all the units in the
381381 development are public housing units or Section 8 project-based
382382 units and the applicant proposes to maintain for a period of 30
383383 years or more 100 percent of the [development] units supported by
384384 housing tax credits as rent-restricted and exclusively for
385385 occupancy by individuals and families earning not more than 50
386386 percent of the area median income, adjusted for family size[; and
387387 [(B) at least one-third of all the units in the
388388 development are public housing units or Section 8 project-based
389389 units];
390390 (B) the applicable private activity bonds will be
391391 redeemed only in an amount consistent with their proportionate
392392 amortization; or
393393 (C) if the redemption of the applicable private
394394 activity bonds will occur in the first five years of the operation
395395 of the development and complies with Section 42(h)(4), Internal
396396 Revenue Code of 1986:
397397 (i) on the date the certificate of
398398 reservation is issued, the Bond Review Board determines that there
399399 is not a waiting list for private activity bonds in the same
400400 priority level established under Section 1372.0321 or, if
401401 applicable, in the same uniform state service region, as referenced
402402 in Section 1372.0231, that is served by the proposed development;
403403 and
404404 (ii) the applicable private activity bonds
405405 will be redeemed according to underwriting criteria, if any,
406406 established by the department;
407407 (3) the applicant proposes to construct a new
408408 development that is located one linear mile or less from a
409409 development that:
410410 (A) serves the same type of household as the new
411411 development, regardless of whether the developments serve
412412 families, elderly individuals, or another type of household;
413413 (B) has received an allocation of housing tax
414414 credits for new construction at any time during the three-year
415415 period preceding the date the application round begins; and
416416 (C) has not been withdrawn or terminated from the
417417 low income housing tax credit program; or
418418 (4) the development is located in a municipality or,
419419 if located outside a municipality, a county that has more than twice
420420 the state average of units per capita supported by housing tax
421421 credits or private activity bonds, unless the applicant:
422422 (A) has obtained prior approval of the
423423 development from the governing body of the appropriate municipality
424424 or county containing the development; and
425425 (B) has included in the application a written
426426 statement of support from that governing body referencing this
427427 section and authorizing an allocation of housing tax credits for
428428 the development.
429429 SECTION 19. (a) In this section, "additional state
430430 ceiling," "applicable official," and "miscellaneous bond ceiling"
431431 have the meanings assigned by Section 1372.001, Government Code, as
432432 amended by this Act.
433433 (b) All reservations, allocations, and carryforward
434434 designations by the Bond Review Board of additional state ceiling
435435 authorized by Section 3021 of the Housing and Economic Recovery Act
436436 of 2008 (Pub. L. No. 110-289), and by applicable officials of
437437 miscellaneous bond ceiling authorized by the Heartland Disaster Tax
438438 Relief Act of 2008 (Pub. L. No. 110-343), regarding Hurricane Ike
439439 disaster area bonds, or by the American Recovery and Reinvestment
440440 Act of 2009 (Pub. L. No. 111-5), before the effective date of this
441441 Act are validated.
442442 (c) An issuer that has carryforward available from
443443 additional state ceiling authorized by the Housing and Economic
444444 Recovery Act of 2008 (Pub. L. No. 110-289) is not restricted by the
445445 project limits for the state ceiling established by Chapter 1372,
446446 Government Code. An issuer that uses the carryforward to issue
447447 qualified mortgage bonds or mortgage credit certificates is not
448448 subject to the utilization percentage calculation established by
449449 Chapter 1372, Government Code, in determining the amount of the
450450 issuer's reservation request.
451451 SECTION 20. This Act takes effect immediately if it
452452 receives a vote of two-thirds of all the members elected to each
453453 house, as provided by Section 39, Article III, Texas Constitution.
454454 If this Act does not receive the vote necessary for immediate
455455 effect, this Act takes effect September 1, 2009.
456456 ______________________________ ______________________________
457457 President of the Senate Speaker of the House
458458 I hereby certify that S.B. No. 2064 passed the Senate on
459459 May 7, 2009, by the following vote: Yeas 31, Nays 0; and that the
460460 Senate concurred in House amendment on May 30, 2009, by the
461461 following vote: Yeas 31, Nays 0.
462462 ______________________________
463463 Secretary of the Senate
464464 I hereby certify that S.B. No. 2064 passed the House, with
465465 amendment, on May 27, 2009, by the following vote: Yeas 146,
466466 Nays 2, one present not voting.
467467 ______________________________
468468 Chief Clerk of the House
469469 Approved:
470470 ______________________________
471471 Date
472472 ______________________________
473473 Governor