S.B. No. 2064
AN ACT
relating to the issuance of state and local government securities,
including the powers and duties of the Bond Review Board and the
issuance of private activity bonds.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1231.062, Government Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) Not later than December [October] 31 of each
even-numbered year, the board shall submit to the legislature a
statistical report relating to:
(1) state securities; and
(2) bonds and other debt obligations issued by local
governments.
(d) The board may enter into a contract for the procurement
of services related to the collection and maintenance of
information on the indebtedness of local governments and state
agencies necessary to prepare the statistical report.
SECTION 2. Subsection (c), Section 1231.063, Government
Code, is amended to read as follows:
(c) Not later than February 15 [December 1] of each year,
the board shall submit the annual study to:
(1) the governor;
(2) the comptroller;
(3) the presiding officer of each house of the
legislature; and
(4) the Senate Committee on Finance and House
Appropriations Committee.
SECTION 3. The heading to Chapter 1372, Government Code, is
amended to read as follows:
CHAPTER 1372. PRIVATE ACTIVITY BONDS AND CERTAIN OTHER BONDS
SECTION 4. Section 1372.001, Government Code, is amended by
amending Subdivisions (1) and (2) and adding Subdivisions (1-a),
(1-b), (4-a), and (8-a) to read as follows:
(1) "Additional state ceiling" means authorization
under federal law for the issuance of bonds that are tax-exempt
private activity bonds subject to the limits imposed by Section
146, Internal Revenue Code (26 U.S.C. Section 146), in an amount in
addition to the state ceiling, including the additional tax-exempt
private activity bonds authorized by Section 3021 of the Housing
and Economic Recovery Act of 2008 (Pub. L. No. 110-289).
(1-a) "Applicable official" means the state official
or state agency designated by federal law to allocate a
miscellaneous bond ceiling or designate bonds entitled to the
federal subsidy limited by a miscellaneous bond ceiling or, in the
absence of designation by federal law, the governor.
(1-b) "Board" means the Bond Review Board.
(2) "Bonds" means all obligations, including bonds,
certificates, or notes, that are:
(A) authorized to be issued by:
(i) the constitution or a statute of this
state; or
(ii) the charter of a home-rule
municipality; and
(B) either:
(i) subject to the limitations of Section
146, Internal Revenue Code (26 U.S.C. Section 146); or
(ii) with respect to Subchapter D,
otherwise entitled to a federal subsidy only if designated for the
exemption, credit, or other subsidy, or allocated a portion of a
limited amount of obligations for which the exemption, credit, or
other subsidy is authorized, by this state or an applicable
official or by an issuer to which this state or the applicable
official has made an allocation, including exemptions, credits, and
other subsidies authorized by:
(a) the Heartland Disaster Tax Relief
Act of 2008 (Pub. L. No. 110-343), regarding Hurricane Ike disaster
area bonds;
(b) the American Recovery and
Reinvestment Act of 2009 (Pub. L. No. 111-5); or
(c) any other federal law authorizing
a federal subsidy.
(4-a) "Federal subsidy" means an exclusion of interest
on a bond from gross income for federal income tax purposes, a
federal income tax credit associated with a bond, a direct federal
subsidy of interest on a bond, or any other federally authorized
financial benefit associated with a bond.
(8-a) "Miscellaneous bond ceiling" means the maximum
amount of bonds of any type that may be issued by issuers in this
state during a calendar year, or cumulatively, that are entitled to
a federal subsidy only if designated for the federal subsidy, or
allocated a portion of a limited amount of bonds other than bonds
subject to the limits imposed by Section 146, Internal Revenue Code
(26 U.S.C. Section 146), for which the federal subsidy is
authorized, by:
(A) this state or the applicable official; or
(B) an issuer to which this state or the
applicable official has made an allocation.
SECTION 5. Section 1372.002, Government Code, is amended by
amending Subsection (a) and adding Subsection (e) to read as
follows:
(a) For purposes of this chapter, a project is:
(1) an eligible facility or facilities that are
proposed to be financed, in whole or in part, by an issue of
qualified residential rental project bonds;
(2) in connection with an issue of qualified mortgage
bonds or qualified student loan bonds, the providing of financial
assistance to qualified mortgagors or students located in all or
any part of the jurisdiction of the issuer; or
(3) an eligible facility or facilities that are [is]
proposed to be financed, in whole or in part, by an issue of bonds
other than bonds described by Subdivision (1) or (2).
(e) For purposes of Subsection (a)(3), and only for
applications for the financing of sewage facilities, solid waste
disposal facilities, and qualified hazardous waste facilities, an
application under this chapter may include multiple facilities in
multiple jurisdictions. In such an application, the number of
facilities may be reduced as needed without affecting their status
as a project for purposes of the application.
SECTION 6. Subsection (a), Section 1372.006, Government
Code, is amended to read as follows:
(a) An application for a reservation under Subchapter B or a
carryforward designation under Subchapter C must be accompanied by
a nonrefundable fee in the amount of $500, except that:
(1) for projects that include multiple facilities
authorized under Section 1372.002(e), the application must be
accompanied by a nonrefundable fee in an amount of $500 for each
facility included in the application for the project; and
(2) for issuers of qualified residential rental
project bonds the application must be accompanied by a
nonrefundable fee of $5,000, of which the board shall retain $1,000
to offset the costs of the private activity bond allocation program
and the administration of that program and of which the board shall
transfer $4,000 through an interagency agreement to the Texas
Department of Housing and Community Affairs for use in the
affordable housing research and information program as provided by
Section 2306.259.
SECTION 7. Section 1372.022, Government Code, is amended to
read as follows:
Sec. 1372.022. AVAILABILITY OF STATE CEILING TO ISSUERS.
(a) If the state ceiling is computed on the basis of $75 per capita
or a greater amount, before August 15 of each year:
(1) 28.0 percent of the state ceiling is available
exclusively for reservations by issuers of qualified mortgage
bonds;
(2) 8 percent of the state ceiling is available
exclusively for reservations by issuers of state-voted issues;
(3) 2.0 percent of the state ceiling is available
exclusively for reservations by issuers of qualified small issue
bonds and enterprise zone facility bonds;
(4) 22.0 percent of the state ceiling is available
exclusively for reservations by issuers of qualified residential
rental project bonds;
(5) 10.5 percent of the state ceiling is available
exclusively for reservations by issuers of qualified student loan
bonds authorized by Section 53B.47 [53.47], Education Code, that
are nonprofit corporations able to issue a qualified scholarship
funding bond as defined by Section 150(d)(2), Internal Revenue Code
(26 U.S.C. Section 150(d)(2)); and
(6) 29.5 percent of the state ceiling is available
exclusively for reservations by any other issuer of bonds that
require an allocation.
(b) On and after August 15 [but before September 1], that
portion of the state ceiling available for reservations becomes
available for all applications for reservations in the order
determined by the board by lot. If all applicants for a reservation
have been offered a portion of the available state ceiling, then the
board shall grant reservations in the order in which the
applications for those reservations are received[, subject to
Section 1372.0321. On and after September 1, that portion of the
state ceiling available for reservations becomes available to any
issuer for any bonds that require an allocation, subject to the
provisions of this subchapter].
SECTION 8. Section 1372.026, Government Code, is amended to
read as follows:
Sec. 1372.026. LIMITATION ON AMOUNT OF STATE CEILING
AVAILABLE TO HOUSING FINANCE CORPORATIONS. (a) The maximum amount
of the state ceiling that may be reserved before August 15 by a
housing finance corporation for the issuance of qualified mortgage
bonds may not exceed the amount computed as follows:
(1) if the local population of the housing finance
corporation is 300,000 or more, $36 [$22.5] million plus the
product of the amount by which the local population exceeds 300,000
multiplied by $40 [$11.25];
(2) if the local population of the housing finance
corporation is 200,000 or more but less than 300,000, $32 [$20]
million plus the product of the amount by which the local population
exceeds 200,000 multiplied by $40 [$22.5];
(3) if the local population of the housing finance
corporation is 100,000 or more but less than 200,000, $24 [$15]
million plus the product of the amount by which the local population
exceeds 100,000 multiplied by $80 [$50]; or
(4) if the local population of the housing finance
corporation is less than 100,000, the product of the local
population multiplied by $240 [$150].
(b) A housing finance corporation may not receive an
allocation for the issuance of qualified mortgage bonds in an
amount that exceeds $40 [$25] million.
(c) For purposes of this section, the local population of a
housing finance corporation is the population of the local
government or local governments on whose behalf a housing finance
corporation is created. If two local governments that have a
population of at least 50,000 [20,000] each and that have
overlapping territory have created housing finance corporations
that have the power to issue bonds to provide financing for home
mortgages, the population of the housing finance corporation
created on behalf of the larger local government is computed by
subtracting from the population of the larger local government the
population of the part of the smaller local government that is
located in the larger local government. The reduction of
population provided by this subsection is not required if the
smaller local government assigns its authority to issue bonds,
based on its population, to the larger local government.
SECTION 9. Section 1372.0261, Government Code, is amended
by amending Subsections (c) and (d) and adding Subsections (e),
(f), and (g) to read as follows:
(c) If a housing finance corporation's utilization
percentage is less than 80 [95] percent but at least 25 percent, the
next time the corporation becomes eligible for a reservation of the
state ceiling, the maximum amount of the state ceiling that may be
reserved for the corporation is equal to the amount for which the
corporation would otherwise be eligible under Section 1372.026
multiplied by the utilization percentage of the corporation's last
bond issue that used an allocation of the state ceiling.
(d) A housing finance corporation may not be penalized under
Subsection (c) if:
(1) the corporation fails to use:
(A) bond proceeds recycled from previous
allocations of the state ceiling; or
(B) taxable bond proceeds; or
(2) as the result of an issuance of bonds, the
corporation's utilization percentage is 80 [95] percent or greater.
(e) If a housing finance corporation's utilization
percentage is less than 25 percent, the next time the corporation
becomes eligible for a reservation of the state ceiling, the
maximum amount of the state ceiling that may be reserved for the
corporation is equal to the amount for which the corporation would
otherwise be eligible under Section 1372.026 multiplied by 25
percent.
(f) A housing finance corporation may not be penalized under
Subsection (c) in a program year if, by December 31 of the preceding
program year, an amount equal to or less than 50 percent of the
aggregate state ceiling available for reservations by issuers of
qualified mortgage bonds under Section 1372.022(a)(1):
(1) has been used in connection with bond issues that
have closed on or before that date; or
(2) has had carryforward elections filed on or before
that date.
(g) An issuer that has carryforward available from the state
ceiling created by the Housing and Economic Recovery Act of 2008
(Pub. L. No. 110-289) is not restricted by project limits for the
state ceiling. An issuer who uses the carryforward to issue
qualified mortgage bonds or mortgage credit certificates is not
subject to the utilization percentage calculation in determining
the amount of the issuer's reservation request.
SECTION 10. Subsection (b), Section 1372.028, Government
Code, is amended to read as follows:
(b) An issuer may apply for a reservation for a program year
not earlier than October 5 of the preceding year. An issuer may not
submit an application for a program year after November 15
[December 1] of that year.
SECTION 11. Subsection (a), Section 1372.035, Government
Code, is amended to read as follows:
(a) The board may not grant a reservation of a portion of the
state ceiling for a program year before January 2 or after November
15 [December 1] of that year.
SECTION 12. Subsection (a), Section 1372.037, Government
Code, is amended to read as follows:
(a) Except as provided by Subsection (b), before August 15
the board may not grant for any single project a reservation for
that year that is greater than:
(1) $40 [$25] million, if the issuer is an issuer of
qualified mortgage bonds, other than the Texas Department of
Housing and Community Affairs or the Texas State Affordable Housing
Corporation;
(2) $50 million, if the issuer is an issuer of a
state-voted issue, other than the Texas Higher Education
Coordinating Board, or $75 million, if the issuer is the Texas
Higher Education Coordinating Board;
(3) the amount to which the Internal Revenue Code
limits issuers of qualified small issue bonds and enterprise zone
facility bonds, if the issuer is an issuer of those bonds;
(4) the lesser of $20 [$15] million or 15 percent of
the amount set aside for reservation by issuers of qualified
residential rental project bonds, if the issuer is an issuer of
those bonds;
(5) the amount as prescribed in Sections 1372.033(d),
(e), and (f), if the issuer is an issuer authorized by Section
53B.47 [53.47], Education Code, to issue qualified student loan
bonds; or
(6) $50 million, if the issuer is any other issuer of
bonds that require an allocation.
SECTION 13. Section 1372.042, Government Code, is amended
by adding Subsection (e) to read as follows:
(e) In addition to any other fees required by this chapter,
an issuer shall submit to the board a nonrefundable fee in the
amount of $500 before receiving a carryforward designation under
Subsection (c).
SECTION 14. Subchapter B, Chapter 1372, Government Code, is
amended by adding Section 1372.045 to read as follows:
Sec. 1372.045. RESERVATION, ALLOCATION, AND CARRYFORWARD
DESIGNATION BY BOARD OF ADDITIONAL STATE CEILING. (a) The board
is authorized to establish and administer programs for the
reservation, allocation, and carryforward designation of
additional state ceiling in accordance with the federal law that
establishes the additional state ceiling and, to the extent
consistent with the federal law, as the board determines will
achieve the purposes for which the additional state ceiling is
authorized by federal law.
(b) The board may adopt rules and procedures the board
considers necessary to effectively administer programs authorized
under this section.
(c) The board may prescribe forms and applications as needed
to effectively implement and administer programs authorized under
this section.
(d) The board may adopt emergency rules in connection with
the programs authorized under this section when the board
determines that the emergency rules are necessary for the state to
obtain the full benefits of the additional state ceiling.
SECTION 15. Subchapter C, Chapter 1372, Government Code, is
amended by adding Section 1372.073 to read as follows:
Sec. 1372.073. DESIGNATION BY BOARD OF UNENCUMBERED STATE
CEILING. Notwithstanding any other provision of this chapter, the
board on the last business day of the year may assign as
carryforward to state agencies at their request and in the order
received any state ceiling that is not reserved or designated as
carryforward and for which no application for carryforward is
pending.
SECTION 16. Chapter 1372, Government Code, is amended by
adding Subchapter D to read as follows:
SUBCHAPTER D. ALLOCATION OF MISCELLANEOUS BOND CEILING
Sec. 1372.101. PROGRAM ADMINISTRATION. (a) The
applicable official may designate bonds as entitled to a portion of
a miscellaneous bond ceiling or allocate a portion of a
miscellaneous bond ceiling to an issuer of bonds:
(1) in accordance with the federal law that
establishes the federal subsidy for which the miscellaneous bond
ceiling is established; and
(2) to the extent consistent with the federal law, as
the applicable official determines will achieve the purposes for
which the federal subsidy is authorized by federal law.
(b) The board is authorized to administer programs
established by the applicable official for the allocation of a
miscellaneous bond ceiling or the designation of bonds entitled to
the federal subsidy limited by a miscellaneous bond ceiling.
Sec. 1372.102. RULES AND PROCEDURES. (a) Unless otherwise
provided by law, the board may adopt rules and procedures the board
considers necessary to effectively administer programs established
by the applicable official for allocation of a miscellaneous bond
ceiling or for designating bonds as entitled to the federal subsidy
limited by the miscellaneous bond ceiling.
(b) The board may adopt emergency rules in connection with
the programs described in Subsection (a) when the board determines
that the emergency rules are necessary for the state to obtain the
full benefits of the federal subsidy that is limited by the
miscellaneous bond ceiling.
(c) The board may prescribe forms and applications as needed
to effectively implement and administer programs described in
Subsection (a).
(d) This section does not prevent an applicable official
from adopting rules and procedures in connection with the
allocations and designations when required by federal or state law
or from administering a program independently of the board.
Sec. 1372.103. APPLICATION FEES. In connection with
programs established by the applicable official for the allocation
of a miscellaneous bond ceiling or the designation of bonds
entitled to the federal subsidy limited by a miscellaneous bond
ceiling, the board may charge an application fee for each
application it receives under this subchapter.
SECTION 17. Section 1372.0235, Government Code, is
repealed.
SECTION 18. Subsection (a), Section 2306.6703, Government
Code, is amended to read as follows:
(a) An application is ineligible for consideration under
the low income housing tax credit program if:
(1) at the time of application or at any time during
the two-year period preceding the date the application round
begins, the applicant or a related party is or has been:
(A) a member of the board; or
(B) the director, a deputy director, the director
of housing programs, the director of compliance, the director of
underwriting, or the low income housing tax credit program manager
employed by the department;
(2) the applicant proposes to replace in less than 15
years any private activity bond financing of the development
described by the application, unless:
(A) at least one-third of all the units in the
development are public housing units or Section 8 project-based
units and the applicant proposes to maintain for a period of 30
years or more 100 percent of the [development] units supported by
housing tax credits as rent-restricted and exclusively for
occupancy by individuals and families earning not more than 50
percent of the area median income, adjusted for family size[; and
[(B) at least one-third of all the units in the
development are public housing units or Section 8 project-based
units];
(B) the applicable private activity bonds will be
redeemed only in an amount consistent with their proportionate
amortization; or
(C) if the redemption of the applicable private
activity bonds will occur in the first five years of the operation
of the development and complies with Section 42(h)(4), Internal
Revenue Code of 1986:
(i) on the date the certificate of
reservation is issued, the Bond Review Board determines that there
is not a waiting list for private activity bonds in the same
priority level established under Section 1372.0321 or, if
applicable, in the same uniform state service region, as referenced
in Section 1372.0231, that is served by the proposed development;
and
(ii) the applicable private activity bonds
will be redeemed according to underwriting criteria, if any,
established by the department;
(3) the applicant proposes to construct a new
development that is located one linear mile or less from a
development that:
(A) serves the same type of household as the new
development, regardless of whether the developments serve
families, elderly individuals, or another type of household;
(B) has received an allocation of housing tax
credits for new construction at any time during the three-year
period preceding the date the application round begins; and
(C) has not been withdrawn or terminated from the
low income housing tax credit program; or
(4) the development is located in a municipality or,
if located outside a municipality, a county that has more than twice
the state average of units per capita supported by housing tax
credits or private activity bonds, unless the applicant:
(A) has obtained prior approval of the
development from the governing body of the appropriate municipality
or county containing the development; and
(B) has included in the application a written
statement of support from that governing body referencing this
section and authorizing an allocation of housing tax credits for
the development.
SECTION 19. (a) In this section, "additional state
ceiling," "applicable official," and "miscellaneous bond ceiling"
have the meanings assigned by Section 1372.001, Government Code, as
amended by this Act.
(b) All reservations, allocations, and carryforward
designations by the Bond Review Board of additional state ceiling
authorized by Section 3021 of the Housing and Economic Recovery Act
of 2008 (Pub. L. No. 110-289), and by applicable officials of
miscellaneous bond ceiling authorized by the Heartland Disaster Tax
Relief Act of 2008 (Pub. L. No. 110-343), regarding Hurricane Ike
disaster area bonds, or by the American Recovery and Reinvestment
Act of 2009 (Pub. L. No. 111-5), before the effective date of this
Act are validated.
(c) An issuer that has carryforward available from
additional state ceiling authorized by the Housing and Economic
Recovery Act of 2008 (Pub. L. No. 110-289) is not restricted by the
project limits for the state ceiling established by Chapter 1372,
Government Code. An issuer that uses the carryforward to issue
qualified mortgage bonds or mortgage credit certificates is not
subject to the utilization percentage calculation established by
Chapter 1372, Government Code, in determining the amount of the
issuer's reservation request.
SECTION 20. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 2064 passed the Senate on
May 7, 2009, by the following vote: Yeas 31, Nays 0; and that the
Senate concurred in House amendment on May 30, 2009, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 2064 passed the House, with
amendment, on May 27, 2009, by the following vote: Yeas 146,
Nays 2, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor