87R19529 JXC-F
By: Paddie H.B. No. 4492
Substitute the following for H.B. No. 4492:
By: Paddie C.S.H.B. No. 4492
A BILL TO BE ENTITLED
AN ACT
relating to securitizing costs associated with electric markets;
granting authority to issue bonds.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 31, Utilities Code, is amended by adding
Subchapter C to read as follows:
SUBCHAPTER C. SECURITIZATION CORPORATION
Sec. 31.101. PURPOSE. (a) The purpose of this subchapter
is to create a corporation dedicated to financing costs that are
eligible for securitization as provided by Subchapter M, Chapter
39. An entity authorized to securitize costs under Subchapter M,
Chapter 39, subject to any other requirements applicable to the
authorization, may request that the Texas Electric Securitization
Corporation conduct the financing on behalf of the entity.
(b) The Texas Electric Securitization Corporation is
created under this subchapter as a special purpose public
corporation and instrumentality of the state for the essential
public purpose of providing a lower-cost financing mechanism for
securitization in the manner provided by this subchapter.
(c) Bonds issued under this subchapter will be the
obligation solely of the issuer and the corporation as borrower, if
applicable, and will not be a debt of or a pledge of the faith and
credit of the state.
(d) Bonds issued under this subchapter shall be nonrecourse
to the credit or any assets of the state and the commission.
Sec. 31.102. DEFINITIONS. In this subchapter:
(1) "Corporation" means the Texas Electric
Securitization Corporation.
(2) "Issuer" means the corporation or any other
corporation, public trust, public instrumentality, or entity that
issues bonds approved by a financing order.
Sec. 31.103. CREATION OF CORPORATION. (a) The corporation
is a nonprofit corporation and instrumentality of this state, and
shall perform the essential governmental function of financing
eligible costs in accordance with this subchapter. The corporation:
(1) shall perform only functions consistent with this
subchapter;
(2) shall exercise its powers through a governing
board;
(3) is subject to the regulation of the commission;
and
(4) has a legal existence as a public corporate body
and instrumentality of the state separate and distinct from the
state.
(b) Assets of the corporation may not be considered part of
any state fund. The state may not budget for or provide any state
money to the corporation. The debts, claims, obligations, and
liabilities of the corporation may not be considered to be a debt of
the state or a pledge of its credit.
(c) The corporation must be self-funded. Before the
imposition of charges to recover securitized amounts, the
corporation may accept and expend for its operating expenses money
that may be received from any source, including financing
agreements with the state, a commercial bank, or another entity to:
(1) finance the corporation's obligations until the
corporation receives sufficient property to cover its operating
expenses as financing costs; and
(2) repay any short-term borrowing under any such
financing agreements.
(d) The corporation has the powers, rights, and privileges
provided for a corporation organized under Chapter 22, Business
Organizations Code, subject to the express exceptions and
limitations provided by this subchapter.
(e) An organizer selected by the executive director of the
commission shall prepare the certificate of formation of the
corporation under Chapters 3 and 22, Business Organizations Code.
The certificate of formation must be consistent with the provisions
of this subchapter.
(f) State officers and agencies are authorized to render
services to the corporation, within their respective functions, as
may be requested by the commission or the corporation.
(g) The corporation or an issuer may:
(1) retain professionals, financial advisors, and
accountants the corporation or issuer considers necessary to
fulfill the corporation's or issuer's duties under this subchapter;
and
(2) determine the duties and compensation of a person
retained under Subdivision (1), subject to the approval of the
commission.
(h) The corporation is governed by a board of five directors
appointed by the commission for two-year terms.
(i) An official action of the board of the corporation
requires the favorable vote of a majority of the directors present
and voting at a meeting of the board.
Sec. 31.104. POWERS AND DUTIES OF CORPORATION. (a) The
corporation, in each instance subject to the prior authorization of
the commission, shall participate in the financial transactions
authorized by this subchapter. The corporation may not engage in
business activities except those activities provided for by this
subchapter and those ancillary and incidental to those activities.
The corporation or an issuer may not apply proceeds of bonds or
charges to a purpose not specified in a financing order, to a
purpose in an amount that exceeds the amount allowed for the purpose
in the order, or to a purpose in contravention of the order.
(b) The board of the corporation, under the provisions of
this subchapter, may employ or retain persons as are necessary to
perform the duties of the corporation.
(c) The corporation may:
(1) acquire, sell, pledge, or transfer property as
necessary to effect the purposes of this subchapter and, in
connection with the action, agree to such terms and conditions as
the corporation deems necessary and proper, consistent with the
terms of a financing order:
(A) to acquire property and to pledge such
property, and any other collateral:
(i) to secure payment of bonds issued by the
corporation, together with payment of any other qualified costs; or
(ii) to secure repayment of any borrowing
from any other issuer of bonds; or
(B) to sell the property to another issuer, which
may in turn pledge that property, together with any other
collateral, to the repayment of bonds issued by the issuer together
with any other qualified costs;
(2) issue bonds on terms and conditions consistent
with a financing order;
(3) borrow funds:
(A) from an issuer of bonds to acquire property,
and pledge that property to the repayment of any borrowing from an
issuer, together with any related qualified costs, all on terms and
conditions consistent with a financing order; or
(B) for initial operating expenses;
(4) sue or be sued in its corporate name;
(5) intervene as a party before the commission or any
court in this state in any matter involving the corporation's
powers and duties;
(6) negotiate and become a party to contracts as
necessary, convenient, or desirable to carry out the purposes of
this subchapter; and
(7) engage in corporate actions or undertakings that
are permitted for nonprofit corporations in this state and that are
not prohibited by, or contrary to, this subchapter.
(d) The corporation shall maintain separate accounts and
records relating to each entity that collects charges for all
charges, revenues, assets, liabilities, and expenses relating to
the entity's related bond issuances.
(e) The board of the corporation may not authorize any
rehabilitation, liquidation, or dissolution of the corporation and
a rehabilitation, liquidation, or dissolution of the corporation
may not take effect as long as any bonds are outstanding unless
adequate protection and provision have been made for the payment of
the bonds pursuant to the documents authorizing the issuance of the
bonds. In the event of any rehabilitation, liquidation, or
dissolution, the assets of the corporation must be applied first to
pay all debts, liabilities, and obligations of the corporation,
including the establishment of reasonable reserves for any
contingent liabilities or obligations, and all remaining funds of
the corporation must be applied and distributed as provided by an
order of the commission.
(f) Before the date that is two years and one day after the
date that the corporation no longer has any payment obligation with
respect to any bonds, including any obligation to an issuer of any
bonds outstanding, the corporation may not file a voluntary
petition under federal bankruptcy law and neither any public
official nor any organization, entity, or other person may
authorize the corporation to be or to become a debtor under federal
bankruptcy law during that period. The state covenants that it will
not limit or alter the denial of authority under this subsection or
Subsection (e), and the provisions of this subsection and
Subsection (e) are hereby made a part of the contractual obligation
that is subject to the state pledge set forth in Section 39.609.
(g) The corporation shall prepare and submit to the
commission for approval an annual operating budget. If requested by
the commission, the corporation shall prepare and submit an annual
report containing the annual operating and financial statements of
the corporation and any other appropriate information.
Sec. 31.105. COMMISSION REGULATION OF CORPORATION. The
commission shall regulate the corporation as provided by this
subchapter. Notwithstanding the regulation authorized by this
section, the corporation is not a public utility.
Sec. 31.106. FINANCING ORDER. (a) This section applies to
the commission's issuance of a financing order under this
subchapter.
(b) Except as otherwise specifically provided by this
subchapter, the provisions of this subtitle that address the
commission's issuance of a financing order under other provisions
of this subtitle also apply to the commission's issuance of a
financing order under this subchapter.
(c) The corporation and any issuer must be a party to the
commission's proceedings that address the issuance of a financing
order along with the entity requesting securitization.
(d) In addition to the other applicable requirements of this
subtitle, a financing order issued under this subchapter must:
(1) require the sale, assignment, or other transfer to
the corporation of certain specified property created by the
financing order and, following that sale, assignment, or transfer,
require that charges paid under any financing order be created,
assessed, and collected as the property of the corporation, subject
to subsequent sale, assignment, or transfer by the corporation as
authorized under this subchapter;
(2) authorize:
(A) the issuance of bonds by the corporation
secured by a pledge of specified property, and the application of
the proceeds of those bonds, net of issuance costs, to the
acquisition of the property from the entity requesting
securitization; or
(B) the acquisition of specified property from
the entity requesting securitization by the corporation, financed:
(i) by a loan by an issuer to the
corporation of the proceeds of bonds, net of issuance costs; or
(ii) by the acquisition by an issuer from
the corporation of the property and in each case the pledge of the
property to the repayment of the loan or bonds, as applicable; and
(3) authorize the entity requesting securitization to
serve as collection agent to collect the charges and transfer the
collected charges to the corporation, the issuer, or a financing
party, as appropriate.
(e) After issuance of the financing order, the corporation
shall arrange for the issuance of bonds as specified in the
financing order by the corporation or another issuer selected by
the corporation and approved by the commission.
(f) Bonds issued pursuant to a financing order under this
section are secured only by the related property and any other funds
pledged under the bond documents. No assets of the state or the
entity requesting securitization are subject to claims by the
holders of the bonds. Following assignment of the property, the
entity requesting securitization does not have any beneficial
interest or claim of right in such charges or in any property.
Sec. 31.107. SEVERABILITY. Effective on the date the first
bonds are issued under this subchapter, if any provision in this
title or portion of this title is held to be invalid or is
invalidated, superseded, replaced, repealed, or expires for any
reason, that occurrence does not affect the validity or
continuation of this subchapter or any other provision of this
title that is relevant to the issuance, administration, payment,
retirement, or refunding of authorized securitization bonds or to
any actions of an entity requesting securitization under this
subchapter, its successors, an assignee, a collection agent, the
corporation, an issuer, or a financing party, and those provisions
shall remain in full force and effect.
SECTION 2. Section 39.002, Utilities Code, is amended to
read as follows:
Sec. 39.002. APPLICABILITY. This chapter, other than
Sections 39.151, 39.1516, 39.155, 39.157(e), 39.203, 39.904,
39.9051, 39.9052, and 39.914(e), does not apply to a municipally
owned utility or an electric cooperative. Sections 39.157(e),
39.203, and 39.904, however, apply only to a municipally owned
utility or an electric cooperative that is offering customer
choice. If there is a conflict between the specific provisions of
this chapter and any other provisions of this title, except for
Chapters 40 and 41, the provisions of this chapter control.
SECTION 3. Section 39.151, Utilities Code, is amended by
adding Subsection (j-1) to read as follows:
(j-1) Notwithstanding Subsection (j), the independent
system operator in ERCOT may not reduce payments to or charge uplift
short-paid amounts from a municipally owned utility that becomes
subject to the jurisdiction of the independent system operator in
ERCOT on or after June 1, 2021, and before December 30, 2021,
related to a default on a payment obligation by a market participant
that occurred before June 1, 2021.
SECTION 4. Chapter 39, Utilities Code, is amended by adding
Subchapter M to read as follows:
SUBCHAPTER M. SECURITIZATION FOR INDEPENDENT ORGANIZATION
Sec. 39.601. PURPOSE; USE OF PROCEEDS; BOND CHARGES. (a)
The purpose of this subchapter is to enable the independent
organization certified under Section 39.151 for the ERCOT power
region to use securitization financing to fund substantial balances
that would otherwise be uplifted to the wholesale market as a result
of market participants defaulting on amounts owed after an extreme
pricing event. Securitization will allow wholesale market
participants who are owed money to be paid in a more timely manner,
while allowing the balance to be repaid over time at a low carrying
cost.
(b) The proceeds of bonds issued for the purpose described
by Subsection (a) must be used solely for the purpose of financing
default balances that otherwise would be or have been uplifted to
the wholesale market. The commission shall ensure that
securitization provides tangible and quantifiable benefits to
wholesale market participants, greater than would have been
achieved absent the issuance of bonds.
(c) The commission shall ensure that the structuring and
pricing of the bonds result in the lowest bond charges consistent
with market conditions and the terms of the financing order. The
present value calculation shall use a discount rate equal to the
proposed interest rate on the bonds.
Sec. 39.602. DEFINITIONS. In this subchapter:
(1) "Assignee" means any individual, corporation, or
other legally recognized entity to which an interest in default or
uplift property is transferred, other than as security.
(2) "Default charges" means nonbypassable amounts to
be charged on all wholesale market transactions administered by the
independent organization certified under Section 39.151 for the
ERCOT power region, approved by the commission under a financing
order to recover qualified costs, that shall be collected by the
independent organization, its successors, an assignee, or other
collection agents as provided by the financing order.
(3) "Financing order" means an order of the commission
approving the issuance of bonds and the creation of charges for the
recovery of qualified costs.
(4) "Financing party" means a holder of bonds,
including trustees, collateral agents, and other persons acting for
the benefit of the holder.
(5) "Independent organization" means the independent
organization certified under Section 39.151 for the ERCOT power
region.
(6) "Period of emergency" means the period beginning
12:00 a.m., February 12, 2021, and ending 11:59 p.m., February 20,
2021.
(7) "Qualified costs" means a default balance
resulting from the period of emergency that otherwise would be or
has been uplifted to other wholesale market participants, together
with the costs of issuing, supporting, and servicing bonds and any
costs of retiring and refunding existing debt in connection with
the issuance of the bonds.
Sec. 39.603. FINANCING ORDERS; TERMS. (a) On application
of the independent organization, the commission may adopt a
financing order to recover the costs of a substantial default
balance of qualified costs resulting from a significant pricing
event on making a finding that such financing is needed to preserve
the integrity of the wholesale market and the public interest after
considering:
(1) the interests of wholesale market participants who
are owed balances; and
(2) the potential effects of uplifting those balances
to the wholesale market without a financing vehicle.
(b) The financing order must detail the amounts to be
recovered and the period over which the nonbypassable default
charges shall be recovered. The period may not exceed 30 years. If
an amount determined under this section is subject to judicial
review of a commission order, a bankruptcy proceeding, or another
type of litigation at the time of the securitization proceeding,
the financing order shall include an adjustment mechanism requiring
the independent organization to adjust its default charges in a
manner that would refund, over the remaining life of the bonds, any
overpayments resulting from securitization of amounts in excess of
the amount resulting from a final determination after completion of
all appellate reviews. The adjustment mechanism may not affect the
stream of revenue available to service the bonds. An adjustment may
not be made under this subsection until all appellate reviews have
been completed, including appellate reviews following a commission
decision on remand of its original orders, if applicable.
(c) Nonbypassable default charges must be collected from
and allocated among wholesale market participants using the same
methodology under which the charges would otherwise be uplifted
under the protocols of the independent organization in effect on
March 1, 2021. The rate associated with the nonbypassable default
charges must be assessed on all wholesale market participants and
may be based on updated transaction data to prevent market
participants from engaging in behavior designed to avoid the
nonbypassable default charges.
(d) A financing order becomes effective in accordance with
its terms and the financing order, together with the default
charges authorized in the order, shall be irrevocable and not
subject to reduction, impairment, or adjustment by further action
of the commission after it takes effect.
(e) The commission shall issue a financing order not later
than the 90th day after the date the independent organization files
a request for the financing order under Subsection (a) or (g).
(f) A financing order is not subject to rehearing by the
commission. A financing order may be reviewed by appeal by a party
to the proceeding to a Travis County district court filed not later
than the 15th day after the date the financing order is signed by
the commission. The judgment of the district court may be reviewed
only by direct appeal to the Supreme Court of Texas filed not later
than the 15th day after the date of the entry of judgment. All
appeals shall be heard and determined by the district court and the
Supreme Court of Texas as expeditiously as possible with lawful
precedence over other matters. Review on appeal shall be based
solely on the record before the commission and briefs to the court
and shall be limited to whether the financing order conforms to the
constitution and laws of this state and the United States and is
within the authority of the commission under this chapter.
(g) At the request of the independent organization, the
commission may adopt a financing order providing for retiring and
refunding the bonds on making a finding that the future default
charges required to service the new bonds, including transaction
costs, will be less than the future default charges required to
service the bonds being refunded. On the retirement of the refunded
bonds, the commission shall adjust the related default charges
accordingly.
Sec. 39.604. PROPERTY RIGHTS. (a) The rights and interests
of the independent organization or its successor under a financing
order, including the right to impose, collect, and receive default
charges authorized in the order, shall be only contract rights
until they are first transferred to an assignee or pledged in
connection with the issuance of bonds, at which time they will
become default property, as described by Subsection (b).
(b) Default property shall constitute a present property
right for purposes of contracts concerning the sale or pledge of
property, even though the imposition and collection of default
charges depends on further acts of the independent organization or
others that have not yet occurred. The financing order shall remain
in effect and the property shall continue to exist for the same
period as the pledge of the state described by Section 39.609.
(c) All revenues and collections resulting from default
charges shall constitute proceeds only of the default property
arising from the financing order.
Sec. 39.605. INTEREST NOT SUBJECT TO SETOFF. The interest
of an assignee or pledgee in default property and in the revenues
and collections arising from that property are not subject to
setoff, counterclaim, surcharge, or defense by the independent
organization or any other person or in connection with the
bankruptcy of a wholesale market participant or the independent
organization. A financing order shall remain in effect and
unabated notwithstanding the bankruptcy of the independent
organization, its successors, or assignees.
Sec. 39.606. DEFAULT CHARGES NONBYPASSABLE. A financing
order shall include terms ensuring that the imposition and
collection of default charges authorized in the order shall be
nonbypassable.
Sec. 39.607. TRUE-UP. A financing order shall include a
mechanism requiring that default charges be reviewed and adjusted
at least annually, not later than the 45th day after the anniversary
date of the issuance of the bonds, to:
(1) correct over-collections or under-collections of
the preceding 12 months; and
(2) ensure the expected recovery of amounts sufficient
to timely provide all payments of debt service and other required
amounts and charges in connection with the bonds.
Sec. 39.608. SECURITY INTERESTS; ASSIGNMENT; COMMINGLING;
DEFAULT. (a) Default property does not constitute an account or
general intangible under Section 9.106, Business & Commerce Code.
The creation, granting, perfection, and enforcement of liens and
security interests in default property are governed by this section
and not by the Business & Commerce Code.
(b) A valid and enforceable lien and security interest in
default property may be created only by a financing order and the
execution and delivery of a security agreement with a financing
party in connection with the issuance of bonds. The lien and
security interest shall attach automatically from the time that
value is received for the bonds and, on perfection through the
filing of notice with the secretary of state in accordance with the
rules prescribed under Subsection (d), shall be a continuously
perfected lien and security interest in the default property and
all proceeds of the property, whether accrued or not, shall have
priority in the order of filing and take precedence over any
subsequent judicial or other lien creditor. If notice is filed
before the 10th day after the date value is received for the default
bonds, the security interest shall be perfected retroactive to the
date value was received. Otherwise, the security interest shall be
perfected as of the date of filing.
(c) Transfer of an interest in default property to an
assignee shall be perfected against all third parties, including
subsequent judicial or other lien creditors, when the financing
order becomes effective, transfer documents have been delivered to
the assignee, and a notice of that transfer has been filed in
accordance with the rules adopted under Subsection (d). However, if
notice of the transfer has not been filed in accordance with this
subsection before the 10th day after the delivery of transfer
documentation, the transfer of the interest is not perfected
against third parties until the notice is filed.
(d) The secretary of state shall implement this section by
establishing and maintaining a separate system of records for the
filing of notices under this section and adopting the rules for
those filings based on Chapter 9, Business & Commerce Code, adapted
to this subchapter and using the terms defined by this subchapter.
(e) The priority of a lien and security interest perfected
under this section is not impaired by any later modification of the
financing order under Section 39.607 or by the commingling of funds
arising from default charges with other funds, and any other
security interest that may apply to those funds shall be terminated
when they are transferred to a segregated account for the assignee
or a financing party. If default property has been transferred to
an assignee, any proceeds of that property shall be held in trust
for the assignee.
(f) If a default or termination occurs under the bonds, the
financing parties or their representatives may foreclose on or
otherwise enforce their lien and security interest in any property
as if they were secured parties under Chapter 9, Business & Commerce
Code, and the commission may order that amounts arising from
default charges be transferred to a separate account for the
financing parties' benefit, to which their lien and security
interest shall apply. On application by or on behalf of the
financing parties, a district court of Travis County shall order
the sequestration and payment to them of revenues arising from the
default charges.
Sec. 39.609. PLEDGE OF STATE. Default bonds are not a debt
or obligation of the state and are not a charge on its full faith and
credit or taxing power. The state pledges, however, for the benefit
and protection of financing parties and the independent
organization that it will not take or permit any action that would
impair the value of default property, or reduce, alter, or impair
the default charges to be imposed, collected, and remitted to
financing parties, until the principal, interest and premium, and
any other charges incurred and contracts to be performed in
connection with the related bonds have been paid and performed in
full. Any party issuing bonds under this subchapter is authorized
to include this pledge in any documentation relating to those
bonds.
Sec. 39.610. TAX EXEMPTION. Transactions involving the
transfer and ownership of default property and the receipt of
default charges are exempt from state and local income, sales,
franchise, gross receipts, and other taxes or similar charges.
Sec. 39.611. NOT PUBLIC UTILITY. An assignee or financing
party may not be considered to be a public utility or person
providing electric service solely by virtue of the transactions
described in this subchapter.
Sec. 39.612. SEVERABILITY. Effective on the date the first
bonds are issued under this subchapter, if any provision in this
title or portion of this title is held to be invalid or is
invalidated, superseded, replaced, repealed, or expires for any
reason, that occurrence does not affect the validity or
continuation of this subchapter or any other provision of this
title that is relevant to the issuance, administration, payment,
retirement, or refunding of bonds or to any actions of the
independent organization, its successors, an assignee, a
collection agent, or a financing party, which shall remain in full
force and effect.
SECTION 5. 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, 2021.