Chapter 313 Guidelines and Frequently Asked Questions

A number of applicants and school districts have requested that the agency consider changes to Form 50-286, 2014 Texas Economic Development Act Agreement (), which was adopted by rule in June 2014. In an effort to accommodate these requests, the agency adopted changes to 50-286 (now renamed Form 50-826 (PDF)) through the rule process, effective Feb. 6, 2020.

The agency had also been asked if applicants and districts that approve agreements on the 2014 Form Agreement would later be permitted to amend their agreements to incorporate changes that may be adopted through the rule making process.

The agency will, with prior approval, permit amendments to the 2014 Agreement (Form 50-286 dated January 2014), to allow applicants and districts to incorporate changes that were adopted in 2016. Requests to amend those agreements (executed using the January 2014 version) should propose exchanging entire sections (for example, amending the agreement to substitute the "new" section 2.5 language for the "old" section 2.5 language). The agency does not anticipate approving amendments that use language from different agreement versions within the same section. For certain sections, the agency may require amending multiple sections, due to re-ordering of the provisions or cross-references in the form agreement. The agency retains the ability to not approve agreement amendments that, due to the aggregate effect of the proposed changes, may violate statute, rules or guidelines in effect at the time of the request.

In order to facilitate requested changes in the future, the agency adopted the following amendment to 9.1052 (c) that permits changes to Form 50-826 (PDF) in special circumstances such as described above.

(c) In special circumstances, a school district may obtain prior approval in writing from the comptroller to use an application or agreement form that requires additional information, or sets out the required information in different language or sequence than that which this section requires.

If you have specific questions about obtaining comptroller approval to amend agreements, please contact the Chapter 313 staff.

Yes, Chapter 313 value limitation agreements are subject to Government Code, Section 2252.908.

In 2015, the 84th Legislature passed House Bill 1295 that states that governmental entities not enter into certain contracts with a business entity unless the business entity submits a disclosure of interested parties at the time it submits a signed contract to the governmental entity. This applies only to a contract that requires an action or vote by the governing body of the entity before it may be signed or has a value of at least $1 million. Given that §313.025(b) requires the governing body of the school district to approve an application to enter into an agreement, the disclosure requirement detailed in HB 1295 applies to all Chapter 313 agreements and amendments to Chapter 313 agreements executed on or after Jan. 1, 2016.

The Texas Ethics Commissions (TEC) adopted rules necessary to implement the law (Texas Administrative Code, Chapter 46), prescribed the disclosure of interested parties form, and posted a copy of the form on the commission's website (Form 1295 (PDF)). Visit the TEC website for more information on how to create or acknowledge a certificate.

Chapter 313 authorizes two types of payments from agreement holders as a part of a Chapter 313 agreement: revenue protection payments (313.027(f)(1)), and extraordinary educational expenses for a temporary increase in enrollment (313.027(f)(2)). Chapter 313 also recognizes, but expressly limits "supplemental payments" as additional payments that may be received by a school district as part of the consideration for the execution of a 313 agreement (313.027(i)).

Revenue protection language is required to be in the agreement and is described in 313.027(f)(1)"…to the extent necessary, include provisions for the protection of future school district revenues through the adjustment of the minimum valuations, the payment of revenue offsets, and other mechanisms agreed to by the property owner and the school district."

Provisions describing "extraordinary educational expenses" are described in 313.027(f)(2) "…the property owner will protect the school district in the event the district incurs extraordinary education-related expenses related to the project that are not directly funded in state aid formulas, including expenses for the purchase of portable classrooms and the hiring of additional personnel to accommodate a temporary increase in student enrollment attributable to the project" (emphasis added).

Any payment that is not for the protection of school district revenues or for extraordinary educational expenses falls into the category of supplemental payment. Chapter 313.027(i) reads:

313.027(i) A person and the school district may not enter into an agreement under which the person agrees to provide supplemental payments to a school district in an amount that exceeds an amount equal to $100 per student per year in average daily attendance, as defined by Section 42.005, Education Code, or for a period that exceeds the period beginning with the period described by Section 313.021(4) and ending with the period described by Section 313.104(2)(B) of this code. This limit does not apply to amounts described by Subsection (f)(1) or (2) of this section.

The Texas Administrative Code (T.A.C. 9.1054) requires that agreements include "a provision that separately states and explicitly identifies the amount, or the method for determining the amount, of any and all payments or transfers made to the school district or to any person or persons in any form if the payment or transfer of thing of value is provided in recognition of, anticipation of, or consideration for the agreement for limitation on appraised value made pursuant to Tax Code, §§313.027(f)(1), 313.027(f)(2), or 313.027(i)."

Further, the Chapter 313 application includes the following section:

Fees and Payments

Enclosed is proof of application fee paid to the school district. For the purpose of this question, "payments to the school district" include any and all payments or transfers of things of value made to the school district or to any person or persons in any form if such payment or transfer of thing of value being provided is in recognition of, anticipation of, or consideration for the agreement for limitation on appraised value.

Please answer only either A or B:

Will any "payments to the school district" that you may make in order to receive a property tax value limitation agreement result in payments that are not in compliance with Tax Code, 313.027(i)? __ Yes __ No

If "payments to the school district" will only be determined by a formula or methodology without a specific amount being specified, could such method result in "payments to the school district" that are not in compliance with Tax Code §313.027(i)? __ Yes __ No

Finally, the Biennial Cost Data Request Sheet completed by the district includes the following question:

Are you aware of any payments or transfer of things of value not included in the table above, made by the applicant or affiliate of the applicant, to the school district, any person or persons, organization or local governmental entity provided in recognition of, anticipation of, or consideration for the agreement for limitation on appraised value? Yes No (Circle one)

If "Yes," please describe and attach additional information as needed.

Applicants and school districts are required to document in the agreement anything of value that is required by the school district as a condition of the district approving a Chapter 313 agreement, and to include those amounts in the calculation of supplemental payments. This includes any requirement by the district that the applicant make payments or transfers of value to any party, not just the district, in return for approving the Chapter 313 agreement. Requiring a payment or transfer of value as a condition of approval of the Chapter 313 agreement and not disclosing that payment, or not including it in the calculation of the statutory maximum supplemental payment amount, is a violation of the Texas Administrative Code and is a material breach of contract that could lead to termination of the agreement. Additionally, since the application and reports are official government documents, knowingly providing incorrect data could be a violation of law.

It is the Comptroller's intent that the form agreement adopted under in 34 TAC 9.1052 not limit the legislature's authority to make changes that affect the terms of this agreement, such as changes related to compliance and verification requirements under the Act.

To communicate this clearly in the form agreement, the Comptroller will accept the following additional language in form agreements submitted for Comptroller review and approval:

"Act" means the Texas Economic Development Act set forth in Chapter 313 of the Texas Tax Code, including any statutory amendments that are applicable to Applicant."

No. The definition of Act applies to all references to sections of Chapter 313 of the Texas Tax Code unless such references are explicitly to sections of Chapter 313 as they existed as of a certain date.

All applicants that have agreements executed after January 1, 2014, are required to file a Job Creation Compliance report starting with the first year they committed to create qualified jobs for the project that was the subject of the application, per Schedule C. For example, if an applicant indicates on Schedule C that they will begin creating qualified jobs in 2019, then they will need to file a report in 2020.

Agreements executed between January 1, 2014 and January 24, 2016 contain a clause requiring qualified property to be located in a reinvestment zone until the final termination date of the agreement. If your agreement includes this clause, you can either:

• amend the agreement to remove this clause;
• have the area re-designated as a reinvestment zone; or
• consult your legal counsel to identify other options.

If your agreement does not contain this clause, then the zone must be active at the time the agreement is executed, and the expiration of the designated zone will not affect an existing agreement.

August 1 – Deadline for applications to be deemed complete by the Comptroller’s Office.

• We are notifying applicants of deficiencies in their applications and it is up to them to resolve these in a timely matter for the application to be deemed complete.
• Completeness starts a 90-day clock for our office to assess economic impact and certify the application.
• If an application is not deemed complete by Aug. 1, it will likely miss the deadline for agreement execution.

November 15 – Deadline to submit proposed agreements for review.

• Following certification, the applicant and school district must negotiate the terms of the agreement and submit to our office for review.
• Submission of the agreement starts a 20 business-day window for our review.
• If an agreement isn’t submitted to the Comptroller’s Office by Nov. 15, it will likely miss the deadline for agreement execution before the program expires.

December 31 – Deadline to execute agreement between applicant and school district.

There is not a formal submission deadline; however to be safe, we recommend that all applications be submitted to the Comptroller’s office by June 1, 2022 to ensure there is ample time for processing and approvals. The application and approval process during an average year can take as long as 6 months. However, with the program expiring we’re seeing an increase in the volume of applications coming in this year. It would be prudent to get the application in as soon as possible. We cannot guarantee that an application submitted to the Comptroller’s office after June 1, 2022 will receive all approvals and the Texas Economic Development Act Agreement will be signed and executed by the school district and the company before December 31, 2022. Applications that are incomplete or have deficiencies will be delayed, making final approval less likely.

The Comptroller’s office will accept and process most amendments after program expiration, but not all. We will not process amendments that expand the size of investment and the scope of the project or push the timeline out further into the future because these actions would expand or extend a project after program expiration. All other amendments that would not contribute to expanding the size of the program or make the program last longer will be accepted.

The Comptroller's Office has developed an online mapping tool. This application allows the user to see counties, school districts, and the 25-mile boundary for selected military facilities. While this map is provided as a courtesy for informational purposes only, it allows a user to gain a general sense of where these boundaries may exist. It also has a feature that allows a user to enter coordinates to pinpoint a location in relation to a military facility. If you have questions about how SB277 may affect your application, we encourage you to contact us early in the project development process.

Each certificate issued by the Comptroller under §313.025(d) will include information related to the expiration date of that certificate. Typically and historically, a certificate is valid for a year from the date the certificate was issued. However, if the proposed start of first complete tax year of the Qualifying Time Period (QTP) is within a year from the date the certificate was issued, the certificate will expire on Dec. 31 of that year.

For projects that do not defer the start of the QTP, Tax Code §313.021 defines the QTP as beginning on the date that the application for a limitation on appraised value is approved by the governing body of the school district (i.e. the date the board votes to approve to application and execute an agreement) plus two complete tax years that begins after date.

For example, if an agreement is anticipated to be executed in 2016 and the QTP has not been deferred, then 2016 would be considered the "stub" year and 2017 and 2018 would be the two complete tax years of the QTP. In this example, an agreement must be executed on or before Dec. 31, 2016. If the agreement is not executed until after Jan. 1, 2017, then 2017 becomes the "stub" year and 2018 and 2019 would be two complete tax years of the QTP. The certificate is no longer valid because the QTP must be modified and the limitation agreement would not conform to the application. To clarify that certain certificates are not valid beyond Dec. 31 of the current year, the Comptroller began explicitly including this date when required. If you have questions, please review the certificate for any special conditions including but not limited to the expiration date.

Please note that other changes to the information presented in the application may also invalidate the certificate. Contact the Comptroller's Office if you have questions.

The school district has 150 days after the application review start date to consider the application. This deadline can be extended by agreement between the district and the applicant as long as the Comptroller is notified. Since the statute requires that school district must approve or disapprove the application before the 151st day, the Comptroller has concluded that an agreement to extend the deadline must occur before the 151st day after the application review start date.

The Comptroller has 90 days after the application review start date to review the application, conduct the economic impact analysis, and make a recommendation to the local school board. For a project where the applicant needs to make investments quickly for other business reasons, it is imperative that the application submitted to the district be as complete as possible.

Yes.

Yes. Section 313.051(d) states that "Except as otherwise provided by this subchapter" the terms of Subchapter B apply. To eliminate the requirement as to the non-qualified wage standard, the statute would have to directly state that it is eliminating the non-qualifying wage standard (or create another non-qualifying wage standard) in order to "otherwise provide."

Yes. Section 313.027(f)(4) was not amended by HB 3390 and states that an agreement must "must provide for the termination of the agreement, the recapture of ad valorem tax revenue lost as a result of the agreement if the owner of the property fails to comply with the terms of the agreement, and payment of a penalty or interest, or both, on that recaptured ad valorem tax revenue." This provision applies to all terms of the agreement, including job and wage requirements.

Yes. The definition of qualifying job in TAC 9.051(30) of the rules proposed July 3, 2014 clarifies that jobs held by employees of contractors are qualifying jobs if those jobs meet certain criteria detailed in the rule. In previous rules (still in effect for many 3-digit projects), jobs held by employees of contractors count as "new jobs" in certain circumstances; qualifying jobs were, prior to Jan. 1, 2014, a subset of "new jobs." The proposed definition of qualifying job in the rules proposed July 3, 2014 is being added to simply consolidate the language of Tax Code 313.021(3) and long-standing Comptroller interpretation of that section.

On the 50-772A form (Chapter 313 Annual Eligibility Report Form) in Section 5A, Question #8 (applying to 3-digit projects), the applicant is asked to specify how many of the total number of qualifying jobs were held by employees of the agreement-holder, and how many were held by employees of contractors. On that same 50-772A form, in Section 5B (applying to 4-digit projects) only the total number of qualifying jobs is requested in Question #1. While future revisions to this section of this form may request this break-out of applicant employees and contractor employees, the only form currently requiring that break-out is the new 50-825 form (Job Creation Compliance Report for Texas Economic Development Act, Section 3, Question #2) promulgated to implement new Section 313.0276 added in HB 3390 in 2013.

While the portion of the 50-772 form applying to 4-digit projects, and the new 50-825 form both address information about qualifying jobs, the two forms serve different purposes. The 50-772 form is promulgated to assist school districts in their oversight and enforcement of the entire Tax Code chapter. The 50-825 form is limited in scope to implement only new Section 313.0276 — administered by the Comptroller's Office.

The Comptroller's office has concluded that the definition of "wage" for any particular limitation agreement depends on the dataset used to determine the minimum required wage for each qualifying job in that school district. For example, if an applicant's minimum required wage for each qualifying job is based on the average weekly wage for manufacturing jobs in the county as published by the Texas Workforce Commission, based on Bureau of Labor Statistics (BLS) Quarterly Census of Employment and Wages (QCEW) data, then the definition of "wage" is that used for the collection of QCEW data. If the minimum required wage is based on regional wage data published by the Texas Workforce Commission based on Occupational Employment and Wages Survey (OES) data, then the definition of wage is that used for OES data collection. Definitions of what compensation is included in "wages" (employer contribution to retirement plans, health benefits, non-wage benefits, overtime, etc.) for each of these datasets may be found on the BLS website.

Qualified investment and qualified property are defined in Tax Code Sections 313.021(1) and (2), respectively. Every party to a property tax limitation agreement should read these statutory definitions closely and fully understand them. The two types of property are closely related and can overlap considerably, but they differ in significant ways.

Qualified investment includes certain types of tangible personal property placed in service during the qualifying time period, or a building or non-removable component of a building that houses the eligible tangible personal property and that is built or constructed during the qualifying time period. Qualified investment does not include land, or any investments made outside of the qualifying time period.

Qualified property is the property to which the property tax value limitation may be applied. It includes land (which will also be subject to the value as limited by the agreement), and may include certain investments made between the application review start date and the beginning of the qualifying time period. Furthermore, qualified property may include investments made after the end of the qualifying time period, as long as the property is eligible and fully described within the application and agreement.

The qualifying time period generally starts on the date the school board approves the application and executes the agreement. It usually includes the remainder of the year that the application is approved, as well as the following two complete tax years. For most projects, the qualifying time period can vary from two years to two-years-and-364 days, depending on the date of board approval. (The tax credit is based on taxable values and taxes paid during the two complete tax years of the qualifying time period. Tax years start on January 1st of each year.)

Two types of projects may have a longer qualifying time period. For a project used in connection with nuclear power generation, the qualifying time period may begin up to three years after the date the application is approved, and may be as long as seven complete tax years by agreement between the district and the applicant. Similarly, for a project used in connection with advanced clean energy, the qualifying time period may begin up to three years after the date the application is approved, and may be as long as five complete tax years.

Yes, subject to Comptroller rules. Although the beginning date may be deferred, the duration of the qualifying time period may not be lengthened.

If a school district elects to consider an application, then once the district determines that that application is complete, the district must provide a written notice to the applicant. The Comptroller's office is also required to provide a written notice to the applicant once they have determined that the received application is complete. The "application review start date" is the later date of either the date on which the school district issues its written notice or the date on which the Comptroller issues its written notice.

Tax Code Section 313.021(2) stipulates that any property constructed before the application review start date may not be included as qualified property, and therefore may not be subject to the value limitation. Additionally, any property existing on the project site before the application review start date must be fully described within the application and agreement in sufficient detail, so the local chief appraiser may clearly and easily distinguish that property from new investment in order for the new investment to be included as qualified property.

See also Property Requirements.

If your software applications have a feature that allows for an accessibility check, run the feature prior to submitting it to the Comptroller's Office. Once our office receives it, we will manually check it for compliance. If the document fails the accessibility check, then it will be returned to you to resolve the issues identified for resubmission after accessibility errors are corrected.

Note that the accessibility checker is only a preliminary check. It is possible that a document will pass an initial automated check, but still not meet accessibility standards when it is manually checked with a screen reader. Ultimately, a document will need to be "readable" by a screen reader. The Comptroller is currently using the Acrobat Pro DC accessibility checker and Job Access with Speech 18 (JAWS) screen reader. Here are a list of resources and a free screen reader:

Resources:

http://www.adobe.com/accessibility/products/acrobat/acrobat-pro-dc-pdf-accessibility-repair-workflow.html

Screen Reader:

https://www.nvaccess.org/

Additional websites that offer PDF 508 compliance help:

• http://www.freedomscientific.com/Products/Blindness/JAWS - Screen reader program our software web accessibility group uses to test documents.
• http://webstandards.sonoma-county.org/content.aspx?sid=1014&id=1123 - County of Sonoma PDF accessibility step by step.
• https://www.section508.gov/blog/check-pdf -- Federal Agency 508 compliance help
• https://www.hhs.gov/web/section-508/making-files-accessible/index.html - HHS help for making PDF files accessible
• https://helpx.adobe.com/acrobat/using/create-verify-pdf-accessibility.html - Adobe accessibility information
• https://www.levelaccess.com/resources/pdf-accessibility-basics-webinar-series/ - Free webinars and transcripts for past webinars regarding pdf accessibility.
• http://www.access-for-all.ch/en/pdf-lab/455-new-test-pdf-files-with-the-pdf-accessibility-checker-pac.html - Free PDF accessibility checker.

The Annual Eligibility Report is completed by the company and sent to the district for the district to determine that the company is adhering to the terms of the executed agreement and provisions of Chapter 313. If an error is identified, the school district and the company should work together to resolve the error before the form is submitted to the Comptroller's Office or submit a revised form if the error is identified after the report was originally sent.

The Tax Code section you selected on your application to estimate the qualifying job wage standard required for your project determines what you can count as “wages” for qualifying jobs. If you selected “§313.021(5)(A)” on your application, which is a qualifying job wage based on 110 % of the county average manufacturing wage, you may include bonuses and overtime pay. This is because this wage standard is based on the Quarterly Census of Employment and Wages (QCEW) program, which includes most forms of compensation including bonuses and overtime pay. If you selected “§313.021(5)(B)” on your application, which is a qualifying job wage based on 110 % of the Council of Governments (COG) regional average manufacturing wage, you may not include overtime and bonuses because this wage standard is based on the Occupational Employment Statistics program (OES), which uses straight time and does not include overtime and holiday bonuses.

No, it would not be a “Qualified Job” unless the employee worked at least 1440 hours in a calendar year. This is because a company who enters into an “Agreement For Limitation On Appraised Value Of Property For School District Maintenance And Operations Taxes” agrees to comply with the requirements in Section 313.021(3) of the Texas Tax Code, Section 313.0276(f) of the Texas Tax Code and Section 9.1059(c) of the Texas Administrative Code. Rule 9.1059(c)(1) provides that “[t]he comptroller may issue a determination that a job created by the agreement holder is not a new qualifying job if the job… (1) does not provide 1,440 hours of work or more for that year.” Instead, a company would report this position as a “Qualified Job” in the Job Creation Compliance Report due in the following year so long as the employee worked at least 1440 hours and satisfied the other requirements for a “Qualified Job.”