With the 2023 Texas legislative session underway, there are several important issues that need to be addressed, such as reducing property taxes, implementing school finance reforms and increasing border security. But one crucial issue that Texas policymakers must tackle in this session is the potential misuse and abuse of anticipation notes — short-term debt securities issued by a state or local government to raise money for public projects.
In Texas, local governments can issue several different types of debt instruments including general obligation (GO) bonds, revenue bonds, certificates of obligation (COs), and anticipation notes (also referred to as tax notes). GO bonds are subject to voter approval and backed by property tax revenues. Revenue bonds are similar to GO bonds except they are backed by project revenues, such as toll road collections. COs are backed by either taxes or other revenues but cannot be used to fund a project that voters rejected in the preceding three years (a restriction added in 2015 by HB 1378 — and for the same reason we need to restrict the use of anticipation notes).
Anticipation notes, however, are different from these other debt instruments in several key ways. They are short-term notes that are backed by property taxes or other revenues, but they do not require voter approval and must mature within seven years. Formally codified into law in 1993 by the Texas Legislature, anticipation notes are useful for funding capital expenditures such as city vehicle purchases or initial start-up costs for larger construction projects. But unlike COs, they have not been restricted from funding projects that failed to previously get voter approval. Thus, taxpayers are at risk of having their voices ignored by misguided politicians.
Take, for example, the recent events in Amarillo:
In November 2020, Amarillo taxpayers voted on a proposal to update and expand an aging convention center at a cost of $275 million. The proposal was soundly rejected, with 61% of voters against the plan. On June 21, 2021, the City Council of Amarillo voted to enter into an agreement with Garfield Public/Private LLC for pre-development services. Mayor Ginger Nelson said, “I think we are in an exploratory phase, wanting to know what are the options? What are the different ways we pay for it and not just landing on the property taxpayers. That’s really what I see as a focus of this next step.”
But the facts tell a different story, one in which some city officials schemed to find a way to overturn the will of the voters. On May 5, 2022, the Tax Increment Reinvestment Zone (TIRZ) #1 board approved an amendment to include part of the Civic Center Complex into the TIRZ #1 project plan. The minutes of the meeting state the following:
"Mr. Freeman stated that there is a minor update to the plan but doesn’t affect the TIRZ in any of its financing. It is a mechanism for City Council to have flexibility in the Civic Center discussions. The City hired Garfield Public Private to study financial feasibility and private financing options and are now wrapping up their report. One of their suggestions was to include it in the downtown TIRZ plan so the City can qualify for different financial options. It is proposed to add a bullet point on page 21 of the plan that states, ‘Expansion and renovation, including the addition of an arena to the Amarillo Civic Center Complex, as well as improvements to the Amarillo Santa Fe Depot Property. It is not anticipated for the costs of these public improvements to be financed with TIRZ revenues.’"
Amarillo City Council held meetings on May 10, 2022, and May 24, 2022, that led to the approval of Ordinance 7980, which included the civic center project in TIRZ #1. In addition, at the May 24, 2022, City Council meeting, Ordinance 7985 — authorizing the issuance of $260,525,000 in anticipation notes to fund the civic center expansion — was approved. The largest anticipation note package prior to that was $60,000,000.
A concerned taxpayer filed a lawsuit against the City of Amarillo, and the case was heard in the 320th District Court before the Honorable William C. Sowder, an assigned judge out of Lubbock. The court ultimately found that the City of Amarillo failed to properly notify the public about various details related to the use of anticipation notes. The Findings of Facts and Conclusions of Law issued by the court in that case stated in part that the action taken to update the TIRZ #1 plan “was done in furtherance of a plan by the city to ultimately issue tax anticipation notes with the intent to do so with as little notice and discussion as possible.”
This step in the plan was essential to allowing the use anticipation notes to fund the project, because it allowed the debt to be characterized as interest and sinking debt that could be refinanced by longer-term debt instruments without voter approval. If the debt was not refinanced, then property taxes would have to almost double to fund the repayment of the shorter-term anticipation notes.
This should serve as a warning to state policymakers that Texas Government Code Chapter 1431, the code allowing the use of anticipation notes, needs to be modified to protect taxpayers and hold public officials accountable to the will of voters. One way to accomplish this is to implement a three-year waiting period before anticipation notes can be used to fund a project that was previously rejected by voters, similar to the rules for COs. In addition, the legislated language could be changed so that an ordinance adopting anticipation notes also imposes the taxes to be used to repay the debt. This is an easy political victory for state lawmakers and Texas taxpayers.