79R4917 ESH-D

By:  Harper-Brown                                                 H.B. No. 2204


A BILL TO BE ENTITLED
AN ACT
relating to the sale of public educational facilities to real estate investment trusts. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Chapter 45, Education Code, is amended by adding Subchapter I to read as follows:
SUBCHAPTER I. SALE OF SCHOOL DISTRICT OR CHARTER SCHOOL FACILITIES
TO REAL ESTATE INVESTMENT TRUST
Sec. 45.251. SALE OF SCHOOL DISTRICT OR CHARTER SCHOOL FACILITIES TO REAL ESTATE INVESTMENT TRUST AUTHORIZED. An independent school district or open-enrollment charter school may sell a district or school facility to a real estate investment trust as provided by this subchapter. Sec. 45.252. CONCURRENT AGREEMENTS. (a) Concurrent with the sale of a facility under this subchapter, a school district or charter school must enter into: (1) a lease with the real estate investment trust purchasing the facility under which the school district or charter school may use the facility as provided by Subsection (c); and (2) a contract with the investment trust or another entity for the trust or other entity to manage, maintain, and, as necessary, improve the facility. (b) A lease under Subsection (a)(1) must be for a term of at least 20 years. A contract under Subsection (a)(2) for a facility must be for the same term as the lease relating to that facility. (c) A lease under Subsection (a)(1) must provide that, for the duration of the lease: (1) during mandatory school hours, the facility must be used for educational purposes; and (2) at times other than during mandatory school hours, the facility may be used for other purposes as determined by the trust managers of the real estate investment trust. Sec. 45.253. NOTICE OF PROPOSED SALE; PROPOSAL. (a) Except as provided by Section 45.254, before selling a facility to a real estate investment trust under this subchapter or executing a lease or contract in connection with the sale, the board of trustees of a school district or the governing body of an open-enrollment charter school shall: (1) determine which facility is proposed to be sold; (2) determine the terms on which the board or governing body will consider selling the facility; (3) publish a notice to prospective purchasers requesting sealed written proposals from prospective purchasers to purchase the facility; and (4) make a formal determination as to which sealed written proposal is most advantageous to the district or charter school and accept that proposal or reject all proposals if considered advisable. (b) A notice under Subsection (a)(3) must be published at least two weeks before the date set for receiving proposals in a real estate journal and in at least two newspapers of general circulation in the school district or the area served by the charter school, as applicable. The notice must include: (1) the terms of sale and the matters to be addressed by concurrent agreements required under Section 45.252 that will be considered; and (2) the time and date by which, and place where, the proposals must be received. (c) A proposal submitted by a real estate investment trust under this section must include proposals relating to the terms of each concurrent agreement required by Section 45.252. Sec. 45.254. UNSOLICITED PROPOSALS BY REAL ESTATE INVESTMENT TRUSTS. (a) A real estate investment trust may make an unsolicited proposal to a school district or open-enrollment charter school to purchase a district or school facility under this subchapter. A proposal submitted by a real estate investment trust under this subsection must include proposals relating to the terms of each concurrent agreement required by Section 45.252. (b) Before a school district or charter school may accept a proposal received under Subsection (a), the district or school must: (1) publish a notice of the proposed sale and a request for competing sealed written proposals; (2) evaluate any competing proposals submitted; and (3) make a formal determination as to whether a competing proposal is more advantageous to the district or charter school than the unsolicited proposal. (c) A notice under Subsection (b) must include: (1) the terms of sale and the matters to be addressed by concurrent agreements required under Section 45.252 that are contained in the unsolicited proposal; and (2) the time and date by which, and place where, the competing proposals must be received. (d) A notice under Subsection (b) must be published in the manner required by Section 45.253(b) for a notice under Section 45.253(a)(3). Sec. 45.255. PURCHASE BY REAL ESTATE INVESTMENT TRUST OF FACILITIES OF MORE THAN ONE EDUCATIONAL INSTITUTION. (a) In this section, "institution of higher education" has the meaning assigned by Section 61.003. (b) A real estate investment trust may purchase facilities from any combination of school districts, open-enrollment charter schools, and institutions of higher education. Sec. 45.256. MANAGEMENT OF TRUST. (a) Notwithstanding Chapter 200, Business Organizations Code, or the Texas Real Estate Investment Trust Act (Article 6138A, Vernon's Texas Civil Statutes): (1) if a real estate investment trust is established to purchase a school district or open-enrollment charter school facility under this subchapter, the certificate of formation of the real estate investment trust must provide that: (A) the board of trustees of each school district or the governing body of each open-enrollment charter school participating in the sale is entitled to appoint two members of the board or governing body, as applicable, to act as trust managers of the real estate investment trust for the duration of the lease required by Section 42.252(a)(1); and (B) the requirement of Paragraph (A) may not be altered by amending the certificate of formation or bylaws; and (2) if an existing real estate investment trust seeks to purchase a school district or open-enrollment charter school facility under Section 42.254, the certificate of formation or bylaws of the real estate investment trust must be amended to provide that if the purchase is completed, the board of trustees of each school district or the governing body of each open-enrollment charter school participating in the sale is entitled to appoint two members of the board or governing body, as applicable, to act as trust managers of the real estate investment trust for the duration of the lease required by Section 42.252(a)(1). (b) Any compensation paid by a real estate investment trust to a member of a school district board of trustees or of a governing body of an open-enrollment charter school for service as a trust manager is the property of the school district or open-enrollment charter school, as applicable. SECTION 2. Subchapter A, Chapter 46, Education Code, is amended by adding Section 46.0041 to read as follows: Sec. 46.0041. LEASES WITH REAL ESTATE INVESTMENT TRUSTS. (a) A district may receive state assistance in connection with a lease with a real estate investment trust under Subchapter I, Chapter 45, concerning an instructional facility. For purposes of this subchapter: (1) taxes levied for purposes of maintenance and operations that are necessary to pay a district's share of the payments under a lease with a real estate investment trust for which the district receives state assistance under this subchapter are considered to be bond taxes; and (2) payments under a lease with a real estate investment trust are considered to be payments of principal of and interest on bonds. (b) Section 46.003(b) applies to taxes levied to pay a district's share of the payments under a lease with a real estate investment trust for which the district receives state assistance under this subchapter. SECTION 3. Subchapter B, Chapter 46, Education Code, is amended by adding Section 46.0331 to read as follows: Sec. 46.0331. LEASES WITH REAL ESTATE INVESTMENT TRUSTS. (a) A district that sells a school facility to a real estate investment trust under Subchapter I, Chapter 45, may receive state assistance in connection with a lease of the facility if the facility was acquired or constructed with eligible bonds for which the district was receiving assistance under this subchapter. For purposes of this subchapter: (1) taxes levied for purposes of maintenance and operations that are necessary to pay a district's share of the payments under a lease with a real estate investment trust for which the district receives state assistance under this subchapter are considered to be bond taxes; and (2) payments under a lease with a real estate investment trust are considered to be payments of principal of and interest on bonds. (b) Section 46.003(b) applies to taxes levied to pay a district's share of the payments under a lease with a real estate investment trust for which the district receives state assistance under this subchapter. SECTION 4. Chapter 55, Education Code, is amended by adding Subchapter D to read as follows:
SUBCHAPTER D. SALE OF INSTITUTION OR JUNIOR COLLEGE FACILITIES TO REAL ESTATE INVESTMENT TRUST
Sec. 55.101. SALE OF INSTITUTION OR JUNIOR COLLEGE FACILITIES TO REAL ESTATE INVESTMENT TRUST AUTHORIZED. An institution of higher education or public junior college may sell an institution or junior college facility to a real estate investment trust as provided by this subchapter. Sec. 55.102. CONCURRENT AGREEMENTS. (a) Concurrent with the sale of a facility under this subchapter, an institution of higher education or public junior college must enter into: (1) a lease with the real estate investment trust purchasing the facility under which the institution or junior college may use the facility as provided by Subsection (c); and (2) a contract with the investment trust or another entity for the trust or other entity to manage, maintain, and, as necessary, improve the facility. (b) A lease under Subsection (a)(1) must be for a term of at least 20 years. A contract under Subsection (a)(2) for a facility must be for the same term as the lease relating to that facility. (c) A lease under Subsection (a)(1) must provide that, for the duration of the lease: (1) during hours when the institution of higher education or public junior college offers classes, the facility must be used for educational purposes; and (2) at times other than during class hours, the facility may be used for other purposes as determined by the trust managers of the real estate investment trust. Sec. 55.103. NOTICE OF PROPOSED SALE; PROPOSAL. (a) Except as provided by Section 55.104, before selling a facility to a real estate investment trust under this subchapter or executing a lease or contract in connection with the sale, the governing board of an institution of higher education or public junior college shall: (1) determine which facility is proposed to be sold; (2) determine the terms on which the board will consider selling the facility; (3) publish a notice to prospective purchasers requesting sealed written proposals from prospective purchasers to purchase the facility; and (4) make a formal determination as to which sealed written proposal is most advantageous to the institution or junior college and accept that proposal or reject all proposals if considered advisable. (b) A notice under Subsection (a)(3) must be published at least two weeks before the date set for receiving proposals in a real estate journal and in at least two newspapers of general circulation in the county in which the institution of higher education is located or in the junior college district, as applicable. The notice must include: (1) the terms of sale and the matters to be addressed by concurrent agreements required under Section 55.102 that will be considered; and (2) the time and date by which, and place where, the proposals must be received. (c) A proposal submitted by a real estate investment trust under this section must include proposals relating to the terms of each concurrent agreement required by Section 55.102. Sec. 55.104. UNSOLICITED PROPOSALS BY REAL ESTATE INVESTMENT TRUSTS. (a) A real estate investment trust may make an unsolicited proposal to an institution of higher education or public junior college to purchase an institution or junior college facility under this subchapter. A proposal submitted by a real estate investment trust under this subsection must include proposals relating to the terms of each concurrent agreement required by Section 55.102. (b) Before an institution of higher education or junior college may accept a proposal received under Subsection (a), the institution or junior college must: (1) publish a notice of the proposed sale and a request for competing sealed written proposals; (2) evaluate any competing proposals submitted; and (3) make a formal determination as to whether a competing proposal is more advantageous to the institution or junior college than the unsolicited proposal. (c) A notice under Subsection (b) must include: (1) the terms of sale and the matters to be addressed by concurrent agreements required under Section 55.102 that are contained in the unsolicited proposal; and (2) the time and date by which, and place where, the competing proposals must be received. (d) A notice under Subsection (b) must be published in the manner required by Section 55.103(b) for a notice under Section 55.103(a)(3). Sec. 55.105. PURCHASE BY REAL ESTATE INVESTMENT TRUST OF FACILITIES OF MORE THAN ONE EDUCATIONAL INSTITUTION. (a) In this section, "open-enrollment charter school" means a school that has been granted a charter under Subchapter D, Chapter 12. (b) A real estate investment trust may purchase facilities from any combination of institutions of higher education, public junior colleges, independent school districts, and open-enrollment charter schools. Sec. 55.106. MANAGEMENT OF TRUST. (a) Notwithstanding Chapter 200, Business Organizations Code, or the Texas Real Estate Investment Trust Act (Article 6138A, Vernon's Texas Civil Statutes): (1) if a real estate investment trust is established to purchase a facility of an institution of higher education or public junior college under this subchapter, the certificate of formation of the real estate investment trust must provide that: (A) the governing board of each institution of higher education or public junior college participating in the sale is entitled to appoint two members of the board to act as trust managers of the real estate investment trust for the duration of the lease required by Section 55.102(a)(1); and (B) the requirement of Paragraph (A) may not be altered by amending the certificate of formation or bylaws; and (2) if an existing real estate investment trust seeks to purchase a facility of an institution of higher education or public junior college under Section 55.104, the certificate of formation or bylaws of the real estate investment trust must be amended to provide that if the purchase is completed, the governing board of each institution of higher education or public junior college participating in the sale is entitled to appoint two members of the board to act as trust managers of the real estate investment trust for the duration of the lease required by Section 55.102(a)(1). (b) Any compensation paid by a real estate investment trust to a member of a governing board of an institution of higher education or public junior college for service as a trust manager is the property of the institution or junior college, as applicable. SECTION 5. This Act takes effect September 1, 2005.