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AN ACT
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relating to certain public facilities, including public facilities |
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used to provide affordable housing. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 303.021, Local Government Code, is |
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amended by adding Subsection (d) to read as follows: |
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(d) A corporation or a sponsor may finance, own, or operate |
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a multifamily residential development only if: |
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(1) the corporation or sponsor complies with all |
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applicable provisions of this chapter; and |
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(2) the development is located: |
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(A) inside the area of operation of the sponsor, |
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if the sponsor is a housing authority; or |
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(B) if the sponsor is not a housing authority, |
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inside the boundaries of the sponsor, without regard to whether the |
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sponsor is authorized to own property or provide services outside |
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the boundaries of the sponsor. |
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SECTION 2. Subchapter B, Chapter 303, Local Government |
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Code, is amended by adding Section 303.0415 to read as follows: |
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Sec. 303.0415. APPLICABILITY OF LAWS RELATING TO CONFLICT |
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OF INTEREST. A member of the board of a corporation or a member of |
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the governing body of a sponsor of a corporation is subject to the |
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same restrictions as a local public official under Chapter 171. |
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SECTION 3. The heading to Section 303.042, Local Government |
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Code, is amended to read as follows: |
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Sec. 303.042. TAXATION; EXEMPTION. |
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SECTION 4. Subchapter B, Chapter 303, Local Government |
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Code, is amended by adding Section 303.0421, and a heading is added |
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to that section to read as follows: |
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Sec. 303.0421. MULTIFAMILY RESIDENTIAL DEVELOPMENTS OWNED |
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BY PUBLIC FACILITY CORPORATIONS. |
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SECTION 5. Section 303.0421, Local Government Code, as |
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added by this Act, is amended by adding Subsections (a), (c), (d), |
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(g), (h), and (i) to read as follows: |
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(a) This section applies to a multifamily residential |
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development that is owned by a corporation created under this |
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chapter, except that this section does not apply to a multifamily |
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residential development that: |
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(1) has at least 20 percent of its residential units |
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reserved for public housing units; |
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(2) participates in the Rental Assistance |
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Demonstration program administered by the United States Department |
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of Housing and Urban Development; |
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(3) receives financial assistance administered under |
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Chapter 1372, Government Code, or receives financial assistance |
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from another type of tax-exempt bond; or |
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(4) receives financial assistance administered under |
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Subchapter DD, Chapter 2306, Government Code. |
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(c) A multifamily residential development that is owned by a |
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corporation created under this chapter by a housing authority and |
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to which Subsection (a) applies must hold a public hearing, at a |
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meeting of the authority's governing body, to approve the |
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development. |
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(d) Notwithstanding Subsection (b), an occupied multifamily |
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residential development that is acquired by a corporation and to |
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which Subsection (a) applies is eligible for an exemption under |
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Section 303.042(c) for: |
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(1) the one-year period following the date of the |
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acquisition, regardless of whether the development complies with |
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the requirements of Subsection (b); and |
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(2) a year following the year described by Subdivision |
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(1) only if the development comes into compliance with the |
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requirements of Subsection (b) not later than the first anniversary |
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of the date of the acquisition. |
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(g) Subsection (f) does not apply to taxes imposed on a |
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multifamily residential development by a conservation and |
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reclamation district created under Section 52, Article III, or |
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Section 59, Article XVI, Texas Constitution, that provides water, |
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sewer, or drainage services to the development, unless the |
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applicable corporation has entered into a written agreement with |
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the district to make a payment to the district in lieu of taxation, |
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in the amount specified in the agreement. |
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(h) Subject to Subsection (i), an exemption under Section |
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303.042(c) for a multifamily residential development to which |
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Subsection (a) applies expires: |
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(1) for an occupied multifamily residential |
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development that is acquired by a corporation, on the 30th |
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anniversary of the date of the acquisition by the corporation; and |
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(2) for a multifamily residential development not |
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described by Subdivision (1), on the 60th anniversary of the date |
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the development receives, from the corporation or the corporation's |
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sponsor, the final approval under this chapter that is necessary to |
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obtain the exemption. |
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(i) An exemption under Section 303.042(c) for a multifamily |
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residential development to which Subsection (a) applies may be |
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extended for the same term of years applicable to the length of the |
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development's exemption under Subsection (h) if: |
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(1) in the five-year period preceding the expiration |
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of the exemption under Subsection (h), the corporation provides |
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notice of the extension to the governing body of the municipality in |
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which the development is located or, if the development is not |
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located in a municipality, the county in which the development is |
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located; |
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(2) the extension is approved in the same manner as was |
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required for the preceding approval of the exemption; and |
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(3) the development is in compliance with, and |
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maintains compliance with, this section and Section 303.0425. |
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SECTION 6. Section 303.042(c), Local Government Code, is |
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amended to read as follows: |
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(c) Subject to Section 303.0421(h), a [A] corporation is |
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engaged exclusively in performance of charitable functions and is |
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exempt from taxation by this state or a municipality or other |
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political subdivision of this state. Bonds issued by a corporation |
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under this chapter, a transfer of the bonds, interest on the bonds, |
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and a profit from the sale or exchange of the bonds are exempt from |
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taxation by this state or a municipality or other political |
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subdivision of this state. |
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SECTION 7. Sections 303.042(d), (e), and (f), Local |
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Government Code, are transferred to Section 303.0421, Local |
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Government Code, as added by this Act, redesignated as Sections |
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303.0421(b), (e), and (f), Local Government Code, and amended to |
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read as follows: |
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(b) Notwithstanding Section 303.042(c) and subject to |
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Subsections (c) and (d) of this section, an [(d) An] exemption under |
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Section 303.042(c) [this section] for a multifamily residential |
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development to which Subsection (a) applies is available [which is |
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owned by a public facility corporation created by a housing |
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authority under this chapter and which does not have at least 20 |
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percent of its units reserved for public housing units, applies] |
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only if: |
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(1) the requirements under Section 303.0425 are met |
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[housing authority holds a public hearing, at a regular meeting of |
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the authority's governing body, to approve the development]; [and] |
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(2) at least: |
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(A) 10 percent of the units in the multifamily |
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residential development are reserved for occupancy as lower income |
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housing units, as defined under Section 303.0425; and |
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(B) 40 [50] percent of the units in the |
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multifamily residential development are reserved for occupancy as |
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moderate income housing units, as defined under Section 303.0425; |
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(3) the corporation delivers to the presiding officer |
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of the governing body of each taxing unit in which the development |
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is to be located written notice of the development, at least 30 days |
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before the date: |
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(A) the corporation takes action to approve a new |
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multifamily residential development or the acquisition of an |
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occupied multifamily residential development; and |
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(B) of any public hearing required to be held |
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under this section; |
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(4) if a majority of the members of the board are not |
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elected officials, the development is approved by the governing |
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body of the municipality in which the development is located or, if |
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the development is not located in a municipality, the county in |
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which the development is located; |
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(5) for an occupied multifamily residential |
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development that is acquired by a corporation and not otherwise |
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subject to a land use restriction agreement under Section 2306.185, |
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Government Code: |
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(A) not less than 15 percent of the total gross |
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cost of the existing development, as shown in the settlement |
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statement, is expended on rehabilitating, renovating, |
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reconstructing, or repairing the development, with initial |
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expenditures and construction activities: |
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(i) beginning not later than the first |
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anniversary of the date of the acquisition; and |
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(ii) finishing not later than the third |
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anniversary of the date of the acquisition; or |
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(B) at least 25 percent of the units are reserved |
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for occupancy as lower income housing units, as defined under |
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Section 303.0425, and the development is approved by the governing |
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body of the municipality in which the development is located or, if |
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the development is not located in a municipality, the county in |
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which the development is located; and |
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(6) not less than 30 days before final approval of the |
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development: |
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(A) the corporation or corporation's sponsor |
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conducts, or obtains from a professional entity that has experience |
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underwriting affordable multifamily residential developments and |
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does not have a financial interest in the applicable development, |
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developer, or public facility user, an underwriting assessment of |
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the proposed development that allows the corporation to make a good |
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faith determination that: |
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(i) for an occupied multifamily residential |
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development acquired by a corporation, the total annual amount of |
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rent reduction on the income-restricted units provided at the |
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development will be not less than 60 percent of the estimated amount |
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of the annual ad valorem taxes that would be imposed on the property |
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without an exemption under Section 303.042(c) for the second, |
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third, and fourth years after the date of acquisition by the |
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corporation; and |
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(ii) for a newly constructed multifamily |
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residential development, the development would not be feasible |
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without the participation of the corporation; and |
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(B) the corporation publishes on its Internet |
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website a copy of the underwriting assessment described by |
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Paragraph (A) [by individuals and families earning less than 80 |
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percent of the area median family income]. |
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(e) For the purposes of Subsection (a) [(d)], a "public |
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housing unit" is a residential [dwelling] unit for which the |
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landlord receives a public housing operating subsidy. It does not |
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include a unit for which payments are made to the landlord under the |
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federal Section 8 Housing Choice Voucher Program. |
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(f) Notwithstanding Sections 303.042(a) and (b) and except |
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as otherwise provided by this section [Subsections (a) and (b)], |
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during the period [of time] that a corporation owns a particular |
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public facility that is a multifamily residential development: |
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(1) [,] a leasehold or other possessory interest in |
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the real property of the public facility granted by the corporation |
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shall be treated in the same manner as a leasehold or other |
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possessory interest in real property granted by an authority under |
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Section 379B.011(b); and |
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(2) the materials used by a person granted a |
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possessory interest described by Subdivision (1) to improve the |
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real property of the public facility shall be exempt from all sales |
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and use taxes because the materials are for the benefit of the |
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corporation. |
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SECTION 8. Subchapter B, Chapter 303, Local Government |
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Code, is amended by adding Sections 303.0425, 303.0426, and |
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303.0427 to read as follows: |
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Sec. 303.0425. ADDITIONAL REQUIREMENTS FOR BENEFICIAL TAX |
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TREATMENT RELATING TO CERTAIN PUBLIC FACILITIES. (a) In this |
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section: |
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(1) "Developer" means a private entity that constructs |
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a development, including the rehabilitation, renovation, |
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reconstruction, or repair of a development. |
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(2) "Housing choice voucher program" means the housing |
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choice voucher program under Section 8, United States Housing Act |
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of 1937 (42 U.S.C. Section 1437f). |
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(3) "Lower income housing unit" means a residential |
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unit reserved for occupancy by an individual or family earning not |
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more than 60 percent of the area median income, adjusted for family |
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size, as defined by the United States Department of Housing and |
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Urban Development. |
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(4) "Moderate income housing unit" means a residential |
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unit reserved for occupancy by an individual or family earning not |
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more than 80 percent of the area median income, adjusted for family |
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size, as defined by the United States Department of Housing and |
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Urban Development. |
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(5) "Public facility user" means a public-private |
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partnership entity or a developer or other private entity that has |
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an ownership interest or a leasehold or other possessory interest |
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in a public facility that is a multifamily residential development. |
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(b) The percentage of lower and moderate income housing |
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units reserved in each category of units in the development, based |
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on the number of bedrooms per unit, must be the same as the |
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percentage of each category of housing units reserved in the |
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development as a whole. |
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(c) The monthly rent charged per unit may not exceed: |
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(1) for a lower income housing unit, 30 percent of 60 |
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percent of the area median income, adjusted for family size, as |
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defined by the United States Department of Housing and Urban |
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Development; or |
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(2) for a moderate income housing unit, 30 percent of |
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80 percent of the area median income, adjusted for family size, as |
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defined by the United States Department of Housing and Urban |
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Development. |
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(d) In calculating the income of an individual or family for |
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a lower or moderate income housing unit, the public facility user |
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must use the definition of annual income described in 24 C.F.R. |
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Section 5.609, as implemented by the United States Department of |
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Housing and Urban Development. If the income of a tenant exceeds an |
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applicable limit at the time of the renewal of a lease agreement for |
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a residential unit, the provisions of Section 42(g)(2)(D), Internal |
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Revenue Code of 1986, apply in determining whether the unit may |
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still qualify as a lower or moderate income housing unit. |
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(e) The public facility user may not: |
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(1) refuse to rent a residential unit to an individual |
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or family because the individual or family participates in the |
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housing choice voucher program; or |
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(2) use a financial or minimum income standard that |
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requires an individual or family participating in the housing |
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choice voucher program to have a monthly income of more than 250 |
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percent of the individual's or family's share of the total monthly |
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rent payable for a unit. |
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(f) A public facility user may require an individual or |
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family participating in the housing choice voucher program to pay |
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the difference between the monthly rent for the applicable unit and |
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the amount of the monthly voucher if the amount of the voucher is |
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less than the rent. |
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(g) A corporation that owns or leases to a public facility |
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user a public facility used as a multifamily residential |
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development shall publish on its Internet website information about |
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the development's: |
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(1) compliance with the requirements of this section; |
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and |
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(2) policies regarding tenant participation in the |
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housing choice voucher program. |
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(h) The public facility user shall: |
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(1) affirmatively market available residential units |
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directly to individuals and families participating in the housing |
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choice voucher program; and |
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(2) notify local housing authorities of the |
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multifamily residential development's acceptance of tenants in the |
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housing choice voucher program. |
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(i) Each lease agreement for a residential unit in a |
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multifamily residential development subject to this section must |
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provide that: |
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(1) the landlord may not retaliate against the tenant |
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or the tenant's guests by taking an action because the tenant |
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established, attempted to establish, or participated in a tenant |
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organization; |
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(2) the landlord may only choose to not renew the lease |
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if the tenant: |
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(A) is in material noncompliance with the lease, |
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including nonpayment of rent; |
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(B) committed one or more substantial violations |
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of the lease; |
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(C) failed to provide required information on the |
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income, composition, or eligibility of the tenant's household; or |
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(D) committed repeated minor violations of the |
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lease that: |
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(i) disrupt the livability of the property; |
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(ii) adversely affect the health and safety |
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of any person or the right to quiet enjoyment of the leased premises |
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and related development facilities; |
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(iii) interfere with the management of the |
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development; or |
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(iv) have an adverse financial effect on |
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the development, including the failure of the tenant to pay rent in |
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a timely manner; and |
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(3) to not renew the lease, the landlord must serve a |
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written notice of proposed nonrenewal on the tenant not later than |
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the 30th day before the effective date of nonrenewal. |
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(j) A tenant may not waive the protections provided by |
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Subsection (i). |
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(k) Requirements under this subchapter relating to the |
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reservation of income-restricted residential units or income |
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restrictions applicable to tenants of a multifamily residential |
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development subject to this subchapter must be documented in a land |
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use restriction agreement or a similar restrictive instrument that: |
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(1) ensures that the applicable restrictions are in |
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effect for not less than 10 years; and |
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(2) is recorded in the real property records of the |
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county in which the development is located. |
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(l) An agreement or instrument recorded under Subsection |
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(k) may be terminated if the development that is the subject of the |
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agreement or instrument: |
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(1) is the subject of a foreclosure sale; or |
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(2) becomes ineligible for an exemption under Section |
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303.042(c) for a reason other than the failure to comply with |
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restrictions recorded in the agreement or instrument. |
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Sec. 303.0426. AUDIT REQUIREMENTS FOR CERTAIN MULTIFAMILY |
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RESIDENTIAL DEVELOPMENTS. (a) In this section: |
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(1) "Department" means the Texas Department of Housing |
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and Community Affairs. |
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(2) "Developer" has the meaning assigned by Section |
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303.0425. |
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(3) "Public facility user" has the meaning assigned by |
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Section 303.0425. |
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(b) A public facility user of a multifamily residential |
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development claiming an exemption under Section 303.042(c) and to |
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which Section 303.0421 applies must annually submit to the |
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department and the chief appraiser of the appraisal district in |
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which the development is located an audit report for a compliance |
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audit, prepared at the expense of the public facility user and |
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conducted by an independent auditor or compliance expert with an |
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established history of providing similar audits on housing |
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compliance matters, to: |
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(1) determine whether the public facility user is in |
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compliance with Sections 303.0421 and 303.0425; and |
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(2) identify the difference in the rent charged for |
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income-restricted residential units and the estimated maximum |
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market rents that could be charged for those units without the rent |
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or income restrictions. |
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(c) Not later than the 60th day after the date of receipt of |
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the audit conducted under Subsection (b), the department shall |
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examine the audit report and publish a report summarizing the |
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findings of the audit. The report must: |
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(1) be made available on the department's Internet |
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website; |
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(2) be issued to a public facility user that has an |
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interest in a development that is the subject of an audit, the |
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comptroller, the applicable corporation, the governing body of the |
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corporation's sponsor, and, if the corporation's sponsor is a |
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housing authority, the elected officials who appointed the housing |
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authority's governing board; and |
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(3) describe in detail the nature of any failure to |
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comply with the requirements in Sections 303.0421 and 303.0425. |
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(d) If an audit report submitted under Subsection (b) |
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indicates noncompliance with Sections 303.0421 and 303.0425, a |
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public facility user: |
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(1) must be given: |
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(A) written notice from the department or |
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appropriate appraisal district that: |
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(i) is provided not later than the 45th day |
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after the date a report has been submitted under Subsection (b); |
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(ii) specifies the reasons for |
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noncompliance; |
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(iii) contains at least one option for a |
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corrective action to resolve the noncompliance; and |
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(iv) informs the public facility user that |
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failure to resolve the noncompliance will result in the loss of an |
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exemption under Section 303.042(c); |
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(B) 60 days after the date notice is received |
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under this subdivision, to resolve the matter that is the subject of |
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the notice; and |
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(C) if a matter that is the subject of a notice |
|
provided under this subdivision is not resolved to the satisfaction |
|
of the department and the appropriate appraisal district during the |
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period provided by Paragraph (B), a second notice that informs the |
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public facility user of the loss of the exemption under Section |
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303.042(c) due to noncompliance with Sections 303.0421 and |
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303.0425; and |
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(2) is considered to be in compliance with Sections |
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303.0421 and 303.0425 if notice under Subdivision (1)(A) is not |
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provided as specified by Subparagraph (i) of that paragraph. |
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(e) An exemption under Section 303.042(c) does not apply for |
|
a tax year in which a multifamily residential development that is |
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owned by a public facility corporation created under this chapter |
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is determined by the department based on an audit conducted under |
|
Subsection (b) to not be in compliance with the requirements of |
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Section 303.0421 or 303.0425. |
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(f) The initial audit report required by Subsection (b) is |
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due not later than June 1 of the year following the first |
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anniversary of: |
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(1) the date of acquisition for an occupied |
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multifamily residential development that is acquired by a |
|
corporation; or |
|
(2) the date a new multifamily residential development |
|
first becomes occupied by one or more tenants. |
|
(g) Subsequent audit reports following the issuance of the |
|
initial audit report under Subsection (f) are due not later than |
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June 1 of each year. |
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(h) An independent auditor or compliance expert may not |
|
prepare an audit under Subsection (b) for more than three |
|
consecutive years for the same public facility user. After the |
|
third consecutive audit, the independent auditor or compliance |
|
expert may prepare an audit only after the second anniversary of the |
|
preparation of the third consecutive audit. |
|
(i) The department shall adopt forms and reporting |
|
standards for the auditing process. |
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(j) An audit conducted under Subsection (b) is subject to |
|
disclosure under Chapter 552, Government Code, except that |
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information containing tenant names, unit numbers, or other tenant |
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identifying information may be redacted. |
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Sec. 303.0427. STUDY OF TAX EXEMPTIONS FOR MULTIFAMILY |
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RESIDENTIAL DEVELOPMENTS OWNED BY PUBLIC FACILITY CORPORATIONS. |
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(a) In this section, "board" means the Legislative Budget Board. |
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(b) The board shall conduct a study that assesses the |
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long-term effects on the state's funding and revenue, including |
|
funding for public education, of ad valorem tax exemptions and |
|
sales and use tax exemptions for multifamily housing developments |
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under Sections 303.042(c) and 303.0421(f). |
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(c) Not later than December 10, 2024, the board shall submit |
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to the governor, the lieutenant governor, and the speaker of the |
|
house of representatives a report on the results of the study. The |
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report must include an estimate of: |
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(1) the funding or revenue that the state has lost as a |
|
result of the exemptions; and |
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(2) the potential increase in funding or revenue that |
|
would result from the repeal of the exemptions. |
|
(d) The board may delegate any authority granted to the |
|
board under this section that the board determines is necessary to |
|
conduct the study under this section. |
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(e) This section expires January 1, 2025. |
|
SECTION 9. Section 392.005, Local Government Code, is |
|
amended by amending Subsections (c) and (d) and adding Subsection |
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(c-1) to read as follows: |
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(c) An exemption under this section for a multifamily |
|
residential development which is owned by [(i) a public facility |
|
corporation created by a housing authority under Chapter 303, (ii)] |
|
a housing development corporation[,] or [(iii)] a similar entity |
|
created by a housing authority, other than a public facility |
|
corporation created by a housing authority under Chapter 303, and |
|
which does not have at least 20 percent of its residential units |
|
reserved for public housing units, applies only if: |
|
(1) the authority holds a public hearing, at a regular |
|
meeting of the authority's governing body, to approve the |
|
development; and |
|
(2) at least 50 percent of the units in the multifamily |
|
residential development are reserved for occupancy by individuals |
|
and families earning less than 80 percent of the area median |
|
[family] income, adjusted for family size. |
|
(c-1) An exemption under this section for a multifamily |
|
residential development which is owned by a public facility |
|
corporation created by a housing authority under Chapter 303 |
|
applies only if: |
|
(1) at least 50 percent of units in the multifamily |
|
residential development are reserved for occupancy by individuals |
|
and families earning not more than 80 percent of the area median |
|
income, adjusted for family size; and |
|
(2) the development: |
|
(A) has at least 20 percent of its residential |
|
units reserved for public housing units; |
|
(B) participates in the Rental Assistance |
|
Demonstration program administered by the United States Department |
|
of Housing and Urban Development; |
|
(C) receives financial assistance administered |
|
under Chapter 1372, Government Code, or receives financial |
|
assistance from another type of tax-exempt bond; or |
|
(D) receives financial assistance administered |
|
under Subchapter DD, Chapter 2306, Government Code. |
|
(d) For the purposes of Subsections [Subsection] (c) and |
|
(c-1), a "public housing unit" is a residential [dwelling] unit for |
|
which the owner receives a public housing operating subsidy. It |
|
does not include a unit for which payments are made to the landlord |
|
under the federal Section 8 Housing Choice Voucher Program. |
|
SECTION 10. (a) Subject to Subsections (b), (c), and (d) of |
|
this section, Sections 303.0421 and 303.0425, Local Government |
|
Code, as added by this Act, apply only to a tax imposed for a tax |
|
year beginning on or after the effective date of this Act. |
|
(b) Subject to Subsections (c) and (d) of this section, |
|
Sections 303.0421 and 303.0425, Local Government Code, as added by |
|
this Act, apply only to a multifamily residential development that |
|
is approved on or after the effective date of this Act by a public |
|
facility corporation or the sponsor of a public facility |
|
corporation, in accordance with Chapter 303, Local Government Code. |
|
A multifamily residential development that was approved by a public |
|
facility corporation or the sponsor of a public facility |
|
corporation before the effective date of this Act is governed by the |
|
law in effect on the date the development was approved by the |
|
corporation or sponsor, and the former law is continued in effect |
|
for that purpose. |
|
(c) Subject to Subsection (d) of this section, Section |
|
303.0421(d), Local Government Code, as added by this Act, applies |
|
only to an occupied multifamily residential development that is |
|
acquired by a public facility corporation on or after the effective |
|
date of this Act. An occupied multifamily residential development |
|
that is acquired by a public facility corporation before the |
|
effective date of this Act is governed by the law in effect on the |
|
date the development was acquired by the public facility |
|
corporation, and the former law is continued in effect for that |
|
purpose. |
|
(d) Notwithstanding any other provision of this section: |
|
(1) Section 303.0426, Local Government Code, as added |
|
by this Act, applies to all multifamily residential developments to |
|
which Section 303.0421 applies and with respect to which an |
|
exemption is sought or claimed under Section 303.042(c); and |
|
(2) the initial audit report required to be submitted |
|
under Section 303.0426(b), Local Government Code, as added by this |
|
Act, for a multifamily residential development that was approved or |
|
acquired by a public facility corporation before the effective date |
|
of this Act must be submitted by the later of: |
|
(A) the date established by Section 303.0426(f), |
|
Local Government Code, as added by this Act; or |
|
(B) June 1, 2024. |
|
SECTION 11. Not later than January 1, 2024, the Texas |
|
Department of Housing and Community Affairs shall adopt rules |
|
necessary to implement Section 303.0426, Local Government Code, as |
|
added by this Act. |
|
SECTION 12. 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, 2023. |
|
|
|
______________________________ |
______________________________ |
|
President of the Senate |
Speaker of the House |
|
|
|
I certify that H.B. No. 2071 was passed by the House on April |
|
26, 2023, by the following vote: Yeas 142, Nays 5, 2 present, not |
|
voting; and that the House concurred in Senate amendments to H.B. |
|
No. 2071 on May 25, 2023, by the following vote: Yeas 115, Nays 20, |
|
3 present, not voting. |
|
|
|
______________________________ |
|
Chief Clerk of the House |
|
|
I certify that H.B. No. 2071 was passed by the Senate, with |
|
amendments, on May 19, 2023, by the following vote: Yeas 28, Nays |
|
3. |
|
|
|
______________________________ |
|
Secretary of the Senate |
|
APPROVED: __________________ |
|
Date |
|
|
|
__________________ |
|
Governor |