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  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.