SECTION 53.16. Submission and Approval of Transcripts

(a) Submitting Attorney. A transcript must be submitted by an attorney licensed in Texas.

(b) Submission Deadlines. An issuer must submit its record of proceedings at least 10 working days prior to closing for traditional financings, and at least 12 working days prior to closing for nonprofit corporation or other conduit issuer financings. In the cover letter for the transcript submission, bond counsel must advise the Public Finance Division of public securities requiring the delivery of an approving opinion earlier than normally provided and must submit the record of proceedings a corresponding amount of additional time prior to the proposed closing date. These time periods may be increased with advance notice from the Public Finance Division in an All Bond Counsel Letter. Record of proceedings must be submitted in substantially final form. Preliminary or pro-forma proceedings will not be accepted for review without prior approval for good cause shown when the current Public Finance Division workload allows. Black-lined pages identifying changes must accompany any changed pages to the record of proceedings. An issuer's failure to submit a substantially complete record of proceedings prior to the expected release date of a preliminary approval letter under subsection (d) of this section may prevent the release of approved public securities by the proposed closing date.

(c) Initial Public Securities. Initial public securities must be submitted no later than five working days prior to closing.

(d) Preliminary Approval Letters. No preliminary approval letter from the Public Finance Division should be expected until the end of the fifth working day preceding the date set for closing, or an earlier date as requested by bond counsel in writing, if the time requirements for an earlier approval date have been met. If the issuer fails to submit a substantially complete record of proceedings, the Public Finance Division may delay the release of the preliminary approval letter until such time as a substantially complete record of proceedings is received. After receipt by bond counsel of a preliminary approval letter relative to a given issue, bond counsel shall supply a written response to any questions, enclosing, when requested, missing or substituted documentation. Intervening telephone discussion is welcome, and confirmation of any verbal waivers or modifications to the preliminary approval requirements should be included in the reply letter.

(e) Submission of Final Documents. Any outstanding requirements for final approval as well as the final versions of documents originally submitted in unexecuted or uncertified form, which shall be executed as required by law, must be submitted no later than three working days prior to closing. Exceptions to this requirement may be granted by the Public Finance Division for good cause, if the current workload allows.

(f) Registration of Public Securities. If all requirements have been satisfied, approved public securities generally will be sent by the Public Finance Division to the Texas Comptroller of Public Accounts for registration two days prior to the proposed closing date.

(g) Approval of Certain Contracts. For record of proceedings in which specific approval by the Office of the Attorney General of a contract providing revenue or security to pay the public security is required, the proceedings, including the contract, must be supplied in final and executed or certified form by the time of approval.

(h) Agreements to be Registered by Texas Comptroller of Public Accounts. For agreements required by law to be registered by the Texas Comptroller of Public Accounts, such as lease purchase agreements, the issuer must submit two fully executed agreements. One will be registered with the Texas Comptroller of Public Accounts and returned to the issuer, and the second will remain with the transcript file.

(i) No Guarantee of Final Approval. Receipt of a preliminary approval letter does not constitute a guarantee of final approval of the public securities and should not be relied upon as such. Closings may be delayed if required documents are not timely filed or if there are unresolved legal issues. Furthermore, the Office of the Attorney General does not represent, assure or guarantee completion of transcript examination or the issuance of transcript approval by any specific date or time.

(j) Calculation of Deadlines. For calculations under this section, the day of submission is counted if the record of proceedings is received by 3:00 p.m., but the day of closing is not counted. If bond counsel states that it is satisfactory for the public securities to be registered by the Comptroller of Public Accounts the day before closing, then one day may be subtracted from the time requirements. If approval is requested a certain number of days prior to closing, then the time requirements are counted back from the requested approval day, not from closing.

(k) Review of Forward Deliveries. An opinion for forward delivery public securities will not be delivered until shortly before the delivery date of the public securities. A preliminary approval letter will be provided, and subsequently, if requested, the reviewing attorney will confirm that all outstanding requirements have been satisfied, to the extent this has occurred. An extensive "settlement certificate" generally setting forth information of the nature required to be in general and no-litigation certificates and confirming that there have been no material changes made to the transcript previously reviewed by this office will be required before the opinion is given.

(l) Return of Record of Proceedings. A record of proceedings on file with the Public Finance Division for six (6) months with no action will be returned to bond counsel. Should any such proceedings be resubmitted, a new fee will be required.

(m) Facsimile Transmissions. Unless specifically requested or approved by the Public Finance Division, no fax transmissions of more than 20 pages may be sent to the Public Finance Division. Unless specifically requested, material should not be faxed in the late afternoon or evening if it is being sent by overnight delivery.

Source Note: The provisions of this §53.16 adopted to be effective January 5, 2017, 41 TexReg 10543