SECTION 190.1. General Provisions

(a) Introduction. Pursuant to the authority granted by the Administrative Procedure Act, Chapter 2001, Government Code, and Chapter 1372, Government Code, the Bond Review Board prescribes the following sections regarding practice and procedure in the allocation administration of the authority in the state to issue private activity bonds.

(b) Objective. The objective of this chapter is to establish the most equitable and efficient means of allocating the state ceiling on private activity bonds in accordance with the Act. The Board intends to formulate policies and guidelines that would provide eligibility standards and procedures for applications submitted to reserve a portion of the state ceiling for private activity bonds.

(c) Definition of terms. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--Chapter 1372, Government Code.

(2) Amount--With respect to bonds, reservation certificate, or a portion of the state ceiling, is a sum measured in terms of United States dollars.

(3) Application fee--Application fees are to be paid as required by Government Code §1372.006 and must be submitted by either overnight delivery, messenger, or electronically as described in §190.8(c), (d) and (e) of this title (relating to Notices, Filings, and Submissions).

(4) Application for carryforward--

(A) The application required to be filed by an issuer with all attachments and amendments to reserve a portion of the state ceiling for carryforward purposes.

(B) In the instance where an issuer is seeking to utilize the allowable number of days to close under the Act and the closing deadline is after December 31, the application for nontraditional carryforward is a letter sent from the issuer to the board, received before December 24th of the program year, notifying the board of intent to close on the applicable date. The letter should include estimated closing date, docket number, and bond amount.

(5) Application for reservation--The application required to be filed by an issuer with all attachments to reserve a portion of the state ceiling.

(6) Authorized representative--A person authorized by the issuer to execute certain correspondence under §190.3(c) of this title (relating to Bond authorization requirements) and §190.5(h) and (i) of this title (relating to Consideration of Qualified Applications by the Board).

(7) Authorized signature--An original, scanned original, or an electronic signature that is authorized by state law and compliant with any relevant codes, including, but not limited to, Title 1 Texas Administrative Code §203.23 of this title (relating to Digital Signatures) and Chapter 322 of the Texas Business and Commerce Code (relating to Uniform Electronic Transactions Act), or any other governing rules or codes, as applicable.

(8) Available--Any amount of the state ceiling set aside for reservations by an issuer upon compliance with the terms of the Act and this chapter.

(9) Board--The Bond Review Board created under Chapter 1078, Acts of the 70th Legislature, Regular Session, 1987 codified as Chapter 1231, Government Code.

(10) Bond authorization requirements--(Thirty-five day filing requirement)--Requirements to be filed by the issuer no later than 35 days after the issuer's reservation date.

(11) Bonds--Includes all bonds, certificates, notes, and other obligations authorized to be issued by any issuer by any statute, city home-rule charter, or the Texas Constitution and which are subject to the limitations of the Code, §146.

(12) Borrower--Any person or persons whose private business use, within the meaning of the Code, would cause any bonds to constitute private activity bonds within the meaning of the Code. If there is more than one such person with respect to any issue of bonds, then the term shall mean and include each and every such person known at the time that the issuer files an application for reservation or an application for carryforward, except that any one of such persons may execute any such application, letter, or other writing which the Act and this chapter requires to be executed by the borrower.

(13) Business day--A day on which the board is open for business. The term shall not include any Saturday, Sunday or holiday officially observed by the state. The board's normal business hours are 8 a.m. to 5 p.m. each business day.

(14) Carryforward--

(A) Traditional Carryforward--The amount of the state ceiling not reserved before November 16 and any amount previously reserved that becomes available on or after that date because of a reservation cancellation or any other reason.

(B) Non-Traditional Carryforward--The amount of state ceiling reserved by an issuer and granted by the Board for a specific purpose and the closing date extends beyond the year in which the reservation was granted.

(15) Certificate of allocation--The notice given by the board to an issuer confirming the issuance of bonds receiving a portion of the state ceiling pursuant to the Act and the Code.

(16) Certificate of delivery--The notice given to the board by the issuer stating the closing date of the bonds and the amount of bonds issued and delivered at closing.

(17) Certificate of reservation--The notice given by the board to an issuer reserving a specific amount of the state ceiling for a specific issue of bonds.

(18) Certification regarding fees--The notice given to the board by the issuer or authorized representative of the issuer stating that either a check for a required fee was sent by overnight delivery or a required fee was sent electronically as described in §190.8(c), (d) and (e) of this title (relating to Notices, Filings, and Submissions) in a timely manner.

(19) Close or closing--The issuance and delivery of bonds by an issuer in exchange for the required payment therefore, or in the case of mortgage credit certificates, the date when an issuer elects not to issue qualified mortgage bonds and establishes a mortgage credit certificate program under the Code. The term does not include a delivery of bonds if the expenditure of the proceeds of the bonds is conditioned on obtaining credit enhancement in support of the bonds.

(20) Closing date--The date the bonds have been issued and delivered in exchange for the required payment therefore.

(21) Closing documents--Documents required to be filed by the issuer not later than the fifth business day after the day on which the bonds are closed.

(22) Closing fee--The nonrefundable fee in the amount of $1,000 or 0.025% of the principal amount of the bonds certified as provided by Government Code §1372.039(a)(1), whichever is greater paid by all issuers other than those described by Government Code §1372.001(16). In addition, an issuer exchanging a portion of the state ceiling for mortgage credit certificates shall submit to the board a closing fee in the amount of $1,000 or 0.0125% of the amount of the state ceiling exchanged, whichever is greater. An issuer receiving a carryforward designation shall submit to the board a closing fee of $1,000 or 0.025%, of the amount of carryforward designation received, whichever is greater.

(23) Code--The Internal Revenue Code of 1986, as amended.

(24) Election--An election by an issuer of qualified mortgage bonds to convert its bond authority to mortgage credit certificates under applicable sections of the Code.

(25) Executive director--The executive director of the board.

(26) Finance team members--Members associated with the specific bond issue and project or mortgage credit certificate program which may include the issuer, user, bond counsel, placement agent, underwriter, trustee, or any other members.

(27) Governing body--The board, council, commission, commissioners court, or legislative body of the government unit.

(28) Government unit--A city, county or other political subdivision which may create and utilize a corporation, to act for and on its behalf.

(29) Housing finance corporation--A corporation created under the Texas Housing Finance Corporations Act, Chapter 394, Local Government Code.

(30) Issued--Bonds that have actually been delivered and paid for in full. The date of issuance shall be the date on which the bonds have been delivered and paid for in full.

(31) Issuer--Any department, board, authority, agency, subdivision, municipal corporation, political subdivision, body politic, or instrumentality of the State of Texas, or any non-profit corporation acting for or on behalf of any of the foregoing.

(32) Joint housing finance corporation--A housing finance corporation acting on behalf of more than one local government unit as provided in the Texas Housing Finance Corporations Act, Chapter 394, Local Government Code.

(33) Local government unit--Any city or county.

(34) Local population--The population in the local government unit or units on whose behalf a housing finance corporation is created. If two local government units overlap, each having created housing finance corporations with the power to issue bonds to provide home mortgage financing, prior to the submission of either the application for reservation or the application for carryforward by either housing finance corporation, there shall be excluded from the population of the larger local government unit that portion of the population of any smaller local government unit having a population of 50,000 or more which is within the larger local government unit, unless the smaller local government unit assigns its authority to issue qualified mortgage bonds, based upon its population, to the larger local government unit. A resolution assigning authority to issue qualified mortgage bonds must have been adopted within the 18 months preceding the date of submission of the application to the board.

(35) Locally voted issue--An issue of bonds authorized pursuant to a referendum approved by the voters of a political subdivision of the State of Texas.

(36) Mortgage credit certificate--A certificate of the nature described in the Code, §25.

(37) Population--As defined by §311.005(3), Government Code.

(38) Prepayments--Reduction of the principal amount of a loan that was originated from bond proceeds resulting in a corresponding reduction of the principal amount of the bond proceeds.

(39) Private activity bond--A private activity bond within the meaning given that term under the Code.

(40) Program year--A calendar year.

(41) Project--A project as defined by Government Code §1372.002, described in the application for reservation or carryforward, proposed to be financed, in whole or in part, by an issue of bonds. With respect to qualified mortgage bonds or qualified student loan bonds, the board shall consider the project or purpose to be the provision of financial assistance to qualifying mortgagors or students within all or any portion of the jurisdiction of the issuer. For purposes of this definition, jurisdiction of the issuer is determined on the date the application for reservation is delivered to the board.

(42) Qualified application--A completed application for reservation or an application for carryforward.

(43) Qualified bond--A qualified bond within the meaning given that term under the Code.

(44) Qualified mortgage bond--A qualified mortgage bond within the meaning given that term under the Code, including mortgage credit certificates.

(45) Qualified residential rental project issue--An issue of bonds for a qualified residential rental project, as that term is defined under the Code, §142(d).

(46) Qualified small issue bond--A bond within the meaning given that term under the Code.

(47) Qualified student loan bond--A bond within the meaning given that term under the Code, §144(b).

(48) Related person--Related person within the meaning given that term under the Code.

(49) Reservation--A reservation of a portion of the state ceiling for a specific bond issue.

(50) Reservation date--The earliest date on which a qualified application for reservation is accepted for filing with the board pursuant to the Act and a portion of the state ceiling is or becomes available to the issuer.

(51) Rules--Any statement of general applicability that implements, interprets, or prescribes law or policy, or describes the board's procedures and practice.

(52) Significant expenditures--Expenditures greater than the lesser of readtac$ext.TacPage?sl=T&app=9&p_dir=F&p_rloc=215273&p_tloc=9965&p_ploc=1&pg=2&p_tac=&ti=34&pt=9&ch=190&rl=1 million or 10% of the reasonably anticipated cost of the project.

(53) Staff--The staff of the board.

(54) State--The State of Texas.

(55) State ceiling--The amount of the authority in the state to issue tax exempt private activity bonds during the calendar year, as determined under the Code.

(56) State-voted issue--An issue of bonds authorized pursuant to a statewide referendum approved by the voters of the state.

(57) Tax-exempt enterprise zone facility bonds--An issue of bonds for an enterprise zone facility, as that term is defined under the Code, §1394.

(58) Unencumbered State Ceiling--Any state ceiling that is not reserved or designated as carryforward and for which no application for carryforward is pending on the last business day of the year which may be assigned by the board, in the order received, to a state issuer or to an issuer that was created to act on behalf of this state at the request of the issuer.

(59) Unexpended proceeds--Proceeds remaining from a prior issue of bonds, including, in the case of qualified mortgage bonds, any unused portion of mortgage credit certificates.

(d) Amendment and suspension of sections. These sections may be amended by the board at any time in accordance with the Administrative Procedure Act, Government Code, Chapter 2001.

(e) Statements and opinions. Statements and opinions expressed orally or in writing by the staff in response to inquiry or otherwise, and not specifically identified and promulgated as sections, shall not be considered regulatory standards of the board and shall not be considered binding upon the executive director in consideration with specific determinations undertaken by the board or the executive director thereafter.

(f) Examination of records. Any party requesting the examination of records pursuant to Chapter 552, Government Code, as amended, shall indicate in writing the specific nature of the document to be viewed.

Source Note: The provisions of this §190.1 adopted to be effective January 3, 1992, 16 TexReg 7646; amended to be effective January 11, 1993, 18 TexReg 65; amended to be effective December 21, 1995, 20 TexReg 10389; amended to be effective October 8, 1997, 22 TexReg 9895; amended to be effective October 6, 1999, 24 TexReg 8566; amended to be effective February 27, 2002, 27 TexReg 1338; amended to be effective September 18, 2003, 28 TexReg 8136; amended to be effective April 10, 2008, 33 TexReg 2831; amended to be effective October 8, 2009, 34 TexReg 6860; amended to be effective December 2, 2019, 44 TexReg 7403; amended to be effective October13,2021,46 TexReg 6948; amended to be effective August 22, 2022, 47 TexReg 5000; amended to be effective October 11, 2023, 48 TexReg 5825